
[Federal Register: March 13, 2008 (Volume 73, Number 50)]
[Proposed Rules]               
[Page 13691-13719]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13mr08-32]                         


[[Page 13691]]

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Part III





Securities and Exchange Commission





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17 CFR Part 248



Part 248--Regulation S-P: Privacy of Consumer Financial Information and 
Safeguarding Personal Information; Proposed Rule


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SECURITIES AND EXCHANGE COMMISSION

17 CFR Part 248

[Release Nos. 34-57427; IC-28178; IA-2712; File No. S7-06-08]
RIN 3235-AK08

 
Part 248--Regulation S-P: Privacy of Consumer Financial 
Information and Safeguarding Personal Information

AGENCY: Securities and Exchange Commission.

ACTION: Proposed rule.

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SUMMARY: The Securities and Exchange Commission (``Commission'') is 
proposing amendments to Regulation S-P, which implements certain 
provisions of the Gramm-Leach-Bliley Act (``GLBA'') and the Fair Credit 
Reporting Act (``FCRA'') for entities regulated by the Commission. The 
proposed amendments would set forth more specific requirements for 
safeguarding information and responding to information security 
breaches, and broaden the scope of the information covered by 
Regulation S-P's safeguarding and disposal provisions. They also would 
extend the application of the disposal provisions to natural persons 
associated with brokers, dealers, investment advisers registered with 
the Commission (``registered investment advisers'') and transfer agents 
registered with the Commission (``registered transfer agents''), and 
would extend the application of the safeguarding provisions to 
registered transfer agents. Finally, the proposed amendments would 
permit a limited transfer of information to a nonaffiliated third party 
without the required notice and opt out when personnel move from one 
broker-dealer or registered investment adviser to another.

DATES: Comments must be received on or before May 12, 2008.

ADDRESSES: Comments may be submitted by any of the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/proposed.shtml); or
     Send an e-mail to rule-comments@sec.gov. Please include 
File Number S7-06-08 on the subject line; or
     Use the Federal eRulemaking Portal (http://
www.regulations.gov). Follow the instructions for submitting comments.

Paper Comments

     Send paper comments in triplicate to Nancy M. Morris, 
Secretary, Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549-1090.

All submissions should refer to File Number S7-06-08. This file number 
should be included on the subject line if e-mail is used. To help us 
process and review your comments more efficiently, please use only one 
method. The Commission will post all comments on the Commission's 
Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments 
are also available for public inspection and copying in the 
Commission's Public Reference Room, 100 F Street, NE., Washington, DC 
20549, on official business days between the hours of 10 a.m. and 3 
p.m. All comments received will be posted without change; we do not 
edit personal identifying information from submissions. You should 
submit only information that you wish to make available publicly.

FOR FURTHER INFORMATION CONTACT: Catherine McGuire, Chief Counsel, or 
Brice Prince, Special Counsel, Office of the Chief Counsel, Division of 
Trading and Markets, (202) 551-5550; or Penelope Saltzman, Acting 
Assistant Director, or Vincent Meehan, Senior Counsel, Office of 
Regulatory Policy, Division of Investment Management, (202) 551-6792, 
Securities and Exchange Commission, 100 F Street, NE., Washington, DC 
20549.

SUPPLEMENTARY INFORMATION: The Commission today is proposing amendments 
to Regulation S-P \1\ under Title V of the GLBA,\2\ the FCRA,\3\ the 
Securities Exchange Act of 1934 (the ``Exchange Act''),\4\ the 
Investment Company Act of 1940 (the ``Investment Company Act''),\5\ and 
the Investment Advisers Act of 1940 (the ``Investment Advisers 
Act'').\6\
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    \1\ 17 CFR part 248. Unless otherwise noted, all references to 
rules under Regulation S-P will be to Part 248 of the Code of 
Federal Regulations (17 CFR 248).
    \2\ 15 U.S.C. 6801-6827.
    \3\ 15 U.S.C. 1681w.
    \4\ 15 U.S.C. 78a.
    \5\ 15 U.S.C. 80a.
    \6\ 15 U.S.C. 80b.
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Table of Contents

I. Background
    A. Statutory Requirements and Current Regulation S-P Mandates
    B. Challenges Posed by Information Security Breaches
II. Discussion
    A. Information Security and Security Breach Response 
Requirements
    B. Scope of the Safeguards and Disposal Rules
    C. Records of Compliance
    D. Exception for Limited Information Disclosure When Personnel 
Leave Their Firms
III. General Request for Comments
IV. Paperwork Reduction Act
V. Cost-Benefit Analysis
VI. Initial Regulatory Flexibility Analysis
VII. Consideration of Burden on Competition and Promotion of 
Efficiency, Competition and Capital Formation
VIII. Small Business Regulatory Enforcement Fairness Act
IX. Statutory Authority
X. Text of Proposed Rules and Rule Amendments

I. Background

A. Statutory Requirements and Current Regulation S-P Mandates

    Subtitle A of Title V of the GLBA requires every financial 
institution to inform its customers about its privacy policies and 
practices, and limits the circumstances in which a financial 
institution may disclose nonpublic personal information about a 
consumer to a nonaffiliated third party without first giving the 
consumer an opportunity to opt out of the disclosure.\7\ In enacting 
the legislation, Congress also specifically directed the Commission and 
other federal financial regulators to establish and implement 
information safeguarding standards requiring financial institutions 
subject to their jurisdiction to adopt administrative, technical and 
physical information safeguards.\8\ The GLBA specified that these 
standards were to ``insure the

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security and confidentiality of customer records and information,'' 
``protect against any anticipated threats or hazards to the security or 
integrity'' of those records, and protect against unauthorized access 
to or use of those records or information, which ``could result in 
substantial harm or inconvenience to any customer.'' \9\
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    \7\ See 15 U.S.C. 6802(a) and (b). The GLBA and Regulation S-P 
draw a distinction between ``consumers'' and ``customers.'' A 
``consumer'' is defined in Section 3(g)(1) of Regulation S-P to mean 
an individual who obtains a financial product or service that is to 
be used primarily for personal, family, or household purposes. See 
17 CFR 248.3(g)(1). A ``customer'' is defined in Section 3(j) of 
Regulation S-P as a consumer who has a continuing relationship with 
the financial institution. See 17 CFR 248.3(j). The distinction 
between customer and consumer determines the notices that a 
financial institution must provide. Pursuant to Sections 4 and 5 of 
Regulation S-P, a financial institution must provide customers with 
an initial notice describing the institution's privacy policies when 
a customer relationship is formed and at least annually throughout 
the customer relationship. In contrast, if a consumer is not a 
customer, a financial institution must only provide a notice if it 
intends to share nonpublic personal information about the consumer 
with a nonaffiliated third party (outside of certain exceptions). 
See 17 CFR 248.4 and 248.5.
    \8\ The GLBA directed the Commission, the Federal Trade 
Commission (``FTC'') and state insurance authorities to implement 
the safeguarding standards by rule. See 15 U.S.C. 6805(b)(2). The 
GLBA directed the Office of the Comptroller of the Currency, the 
Board of Governors of the Federal Reserve System, the Federal 
Deposit Insurance Corporation (``FDIC'') and the Office of Thrift 
Supervision (collectively, the ``Banking Agencies'') and the 
National Credit Union Administration (``NCUA'') to implement the 
safeguarding standards by regulation or by guidelines. See 15 U.S.C. 
6805(b)(1).
    \9\ 15 U.S.C. 6801(b).
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    In response to these directives, we adopted Regulation S-P in 
2000.\10\ Section 30(a) of Regulation S-P (the ``safeguards rule'') 
requires institutions to safeguard customer records and 
information,\11\ while other sections of the regulation implement the 
notice and opt out provisions of the GLBA.\12\ The safeguards rule 
currently requires institutions to adopt written policies and 
procedures for administrative, technical, and physical safeguards to 
protect customer records and information. The safeguards must be 
reasonably designed to meet the GLBA's objectives.\13\ This approach 
provides flexibility for institutions to safeguard customer records and 
information in accordance with their own privacy policies and practices 
and business models. The safeguards rule and the notice and opt out 
provisions currently apply to brokers, dealers, registered investment 
advisers, and investment companies.\14\
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    \10\ See Privacy of Consumer Financial Information (Regulation 
S-P), Exchange Act Release No. 42974, Investment Company Act 
(``ICA'') Release No. 24543, Investment Advisers Act (``IAA'') 
Release No. 1883 (June 22, 2000), 65 FR 40334 (June 29, 2000). 
Pursuant to the GLBA directive, Regulation S-P is consistent with 
and comparable to the financial privacy rules adopted by other 
federal financial regulators in 2000. See FTC, Privacy of Consumer 
Financial Information, 65 FR 33646 (May 24, 2000); Banking Agencies, 
Privacy of Consumer Financial Information, 65 FR 35162 (June 1, 
2000); and NCUA, Privacy of Consumer Financial Information; 
Requirements for Insurance, 65 FR 31722 (May 18, 2000). See also 15 
U.S.C. 6804(a)(2) (directing federal financial regulators to consult 
and coordinate to assure, to the extent possible, that each agency's 
regulations are consistent and comparable with the regulations 
prescribed by the other agencies).
    In 2001, we amended Regulation S-P to permit futures commission 
merchants and introducing brokers that are registered by notice as 
broker-dealers in order to conduct business in security futures 
products under Section 15(b)(11)(A) of the Exchange Act (``notice-
registered broker-dealers'') to comply with Regulation S-P by 
complying with financial privacy rules that the Commodity Futures 
Trading Commission (``CFTC'') adopted that year. See 17 CFR 
248.2(b); Registration of Broker-Dealers Pursuant to Section 
15(b)(11) of the Securities Exchange Act of 1934, Exchange Act 
Release No. 44730 (Aug. 21, 2001), 66 FR 45138 (Aug. 27, 2001); see 
also CFTC, Privacy of Consumer Financial Information, 66 FR 21236 
(Apr. 27, 2001).
    \11\ 17 CFR 248.30(a).
    \12\ See 17 CFR 248.1-248.18. As described above, the GLBA and 
Regulation S-P require brokers, dealers, investment advisers 
registered with the Commission, and investment companies to provide 
an annual notice of their privacy policies and practices to their 
customers (and notice to consumers before sharing their nonpublic 
personal information with nonaffiliated third parties outside 
certain exceptions). See supra note 7; 15 U.S.C. 6803(a); 17 CFR 
248.4; 17 CFR 248.5. In general, the privacy notices must describe 
the institutions' policies and practices with respect to disclosing 
nonpublic personal information about a consumer to both affiliated 
and nonaffiliated third parties. 15 U.S.C. 6803; 17 CFR 248.6. The 
notices also must provide a consumer a reasonable opportunity to 
direct the institution generally not to share nonpublic personal 
information about the consumer (that is, to ``opt out'') with 
nonaffiliated third parties. 15 U.S.C. 6802(b); 17 CFR 248.7. (The 
privacy notice also must provide, where applicable under the FCRA, a 
notice and an opportunity for a consumer to opt out of certain 
information sharing among affiliates.) Sections 13, 14, and 15 of 
Regulation S-P (17 CFR 248.13, 17 CFR 248.14, and 17 CFR 248.15) set 
out exceptions from these general notice and opt out requirements 
under the GLBA. Section 13 includes exceptions for sharing 
information with other financial institutions under joint marketing 
agreements and with certain service providers. Section 14 includes 
exceptions for sharing information for everyday business purposes, 
such as maintaining or servicing accounts. Section 15 includes 
exceptions for disclosures made with the consent or at the direction 
of a consumer, disclosures for particular purposes such as 
protecting against fraud, disclosures to consumer reporting 
agencies, and disclosures to law enforcement agencies. In March 
2007, the Commission, together with the Banking Agencies, the CFTC, 
the FTC, and the NCUA, published for public comment in the Federal 
Register a proposed model privacy form that financial institutions 
could use for their privacy notices to consumers required by the 
GLBA. See Interagency Proposal for Model Privacy Form Under the 
Gramm-Leach-Bliley Act, Exchange Act Release No. 55497, IAA Release 
No. 2598, ICA Release No. 27755 (Mar. 20, 2007), 72 FR 14940 (Mar. 
29, 2007) (``Interagency Model Privacy Form Proposal'').
    \13\ Specifically, the safeguards must be reasonably designed to 
insure the security and confidentiality of customer records and 
information, protect against anticipated threats to the security or 
integrity of those records and information, and protect against 
unauthorized access to or use of such records or information that 
could result in substantial harm or inconvenience to any customer. 
See supra note 9 and accompanying text.
    \14\ Regulation S-P applies to investment companies as the term 
is defined in Section 3 of the Investment Company Act (15 U.S.C. 
80a-3), whether or not the investment company is registered with the 
Commission. See 17 CFR 248.3(r). Thus, a business development 
company, which is an investment company but is not required to 
register as such with the Commission, is subject to Regulation S-P. 
In this release, institutions to which Regulation S-P currently 
applies, or to which the proposed amendments would apply, are 
sometimes referred to as ``covered institutions.''
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    Pursuant to the Fair and Accurate Credit Transactions Act of 2003 
(``FACT Act''), the Commission amended Regulation S-P in 2004 to 
protect against the improper disposal of consumer report 
information.\15\ Section 30(b) of Regulation S-P (the ``disposal 
rule'') currently applies to the institutions subject to the other 
provisions of Regulation S-P, except that it excludes notice-registered 
broker-dealers and includes registered transfer agents.
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    \15\ 17 CFR 248.30(b). Section 216 of the FACT Act amended the 
FCRA by adding Section 628 (codified at 15 U.S.C. 1681w), which 
directed the Commission and other federal financial regulators to 
adopt regulations for the proper disposal of consumer information, 
and provides that any person who maintains or possesses consumer 
information or any compilation of consumer information derived from 
a consumer report for a business purpose must properly dispose of 
the information. See Disposal of Consumer Report Information, 
Exchange Act Release No. 50781, IAA Release No. 2332, ICA Release 
No. 26685 (Dec. 2, 2004), 69 FR 71322 (Dec. 8, 2004) (``Disposal 
Rule Adopting Release''). When we adopted the disposal rule, we also 
amended Regulation S-P to require that the policies and procedures 
institutions must adopt under the safeguards rule be in writing.
    The disposal rule requires transfer agents registered with the 
Commission, as well as brokers and dealers other than notice-
registered broker-dealers, investment advisers registered with the 
Commission, and investment companies that maintain or possess 
``consumer report information'' for a business purpose, to take 
``reasonable measures to protect against unauthorized access to or 
use of the information in connection with its disposal.''
    In order to provide clarity, the Disposal Rule Adopting Release 
included five examples intended to provide guidance on disposal 
measures that would be deemed reasonable under the disposal rule. 
See Disposal Rule Adopting Release at section II.A.2.
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B. Challenges Posed by Information Security Breaches

    In recent years, we have become concerned with the increasing 
number of information security breaches that have come to light and the 
potential for identity theft and other misuse of personal financial 
information. Once seemingly confined mainly to commercial banks and 
retailers, this problem has spread throughout the business community, 
including the securities industry.\16\
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    \16\ See Press Release, NASD, NASD Warns Investors to Protect 
Online Account Information, Brokerages Also Reminded of Obligation 
to Protect Customer Information from New Threats (July 28, 2005), 
http://www.finra.org/PressRoom/NewsReleases/2005NewsReleases/P014775 
(last visited Nov. 6, 2007). See also In re NEXT Financial Group, 
Inc., Exchange Act Release No. 56316 (Aug. 24, 2007), http://
www.sec.gov/litigation/admin/2007/34-56316.pdf, and Order 
Instituting Administrative and Cease-and-Desist Proceedings Pursuant 
to Sections 15(b) and 21C of the Securities Exchange Act of 1934 
(Aug. 24, 2007) (alleging violations of the notice and opt out 
provisions of Regulation S-P and the safeguards rule in connection 
with recruiting registered representatives), http://www.sec.gov/
litigation/admin/2007/34-56316-o.pdf.
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    In the last two years, we have seen a significant increase in 
information security breaches involving institutions we regulate. 
Perhaps most disturbing is the increase in incidents involving the 
takeover of online brokerage accounts, including the use of the 
accounts by foreign nationals as part of ``pump-and-dump'' schemes.\17\ 
The financial

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services sector also is a popular target for online targeted attacks, 
and ``phishing'' attacks in which fraudsters set up an Internet site 
designed to mimic a legitimate site and induce random Internet users to 
disclose personal information.\18\ In other recent incidents, 
registered representatives of broker-dealers disposed of information 
and records about clients or prospective clients in accessible areas, 
from which journalists were able to remove them. Sensitive securities-
related data also has been lost or stolen as a result of other 
incidents.\19\
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    \17\ While some account takeovers may have been facilitated by 
investors failing to take adequate precautions against security 
threats such as ``keylogger'' programs and ``phishing'' attacks, 
many online brokerage firms have successfully reduced their exposure 
to account takeovers by improving their authentication and 
monitoring procedures. The Commission has been active in this area, 
and has brought several enforcement cases involving defendants in 
foreign jurisdictions. See, e.g., Litigation Release No. 20037 (Mar. 
12, 2007), available at http://www.sec.gov/litigation/litreleases/
2007/lr20037.htm (three Indian nationals charged with participating 
in an alleged fraudulent scheme to manipulate the prices of at least 
fourteen securities through the unauthorized use of other people's 
online brokerage accounts); and Litigation Release No. 19949 (Dec. 
19, 2006), available at http://www.sec.gov/litigation/litreleases/
2006/lr19949.htm (emergency asset freeze obtained; complaint alleged 
an alleged Estonia-based account intrusion scheme that targeted 
online brokerage accounts in the U.S. to manipulate the markets).
    \18\ In 2006, Symantec Corporation, a seller of information 
security and information management software, reported that in the 
first half of 2006, 84 percent of tracked phishing sites targeted 
the financial sector and 9 of the top 10 brands phished this period 
were from the financial sector. Because the financial services 
sector is a logical target for attackers increasingly motivated by 
financial gain, that sector was also the second most frequent target 
of Internet-based attacks (after home users). See Symantec, Symantec 
Internet Security Threat Report, Trends for January 06-June 06, at 
9, 23 (Sept. 2006), http://www.symantec.com/specprog/threatreport/
ent-whitepaper_symantec_internet_security_threat_report_x_
09_2006.en-us.pdf (last visited Nov. 6, 2007) (``Symantec September 
2006 Internet Security Threat Report''). Reportedly, employees of 
financial services firms ``are increasingly being invited to visit 
Web sites or download programs by people pretending to be colleagues 
or peers,'' followed by attack programs on the sites or in downloads 
that ``then open tunnels into the corporate network.'' More 
recently, although financial services-related spam reportedly ``made 
up 21 percent of all spam in the first six months of 2007, making it 
the second most common type of spam during this period,'' there was 
a 30-percent decline in stock market ``pump and dump'' spam ``due to 
a decline in spam touting penny stocks that was triggered by actions 
taken by the United States Securities and Exchange Commission, which 
limited the profitability of this type of spam by suspending trading 
of the stocks that are touted.'' See Symantec, Symantec Internet 
Security Threat Report, Trends for January-June 07, Volume XII, at 
107 (Sept. 2007), http://eval.symantec.com/mktginfo/enterprise/
white--papers/ent-whitepaper--internet--security--threat--report--
xii--09--2007.en-us.pdf (last visited Nov. 6, 2007) (citing 
Commission Press Release 2007-34, SEC Suspends Trading Of 35 
Companies Touted In Spam E-mail Campaigns (Mar. 8, 2007), available 
at http://www.sec.gov/news/press/2007/2007-34.htm).
    \19\ For example, in April 2005, a shipping company lost a 
computer backup tape containing account information for more than 
200,000 broker-dealer customers. The broker-dealer voluntarily 
notified its affected customers, although the data was compressed 
and the tape was thought to have been destroyed. In December 2005, a 
laptop computer containing unencrypted information that included 
names and account numbers of 158,000 customers and the names and 
Social Security numbers of 68,000 adviser personnel was stolen from 
a registered investment adviser, and in March 2006, a laptop 
computer containing the names, addresses, Social Security numbers, 
dates of birth, and other employment-related information of as many 
as 196,000 retirement plan participants was stolen from a benefits 
plan administration subsidiary of a registered investment adviser. 
In both cases, the laptops were taken from vehicles by thieves who 
appear to have stolen them for their value as computer hardware 
rather than for the information contained on them. The registered 
investment adviser voluntarily notified the more than 200,000 
clients and financial advisers whose information was compromised, 
while the benefits plan administrator voluntarily notified the 
nearly 200,000 retirement plan participants whose information was 
compromised, and offered to pay for a year of credit monitoring for 
each of them.
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    Many firms in the securities industry are aware of these problems 
and have appropriate safeguards in place to address them.\20\ We are 
concerned, however, that some firms do not regularly reevaluate and 
update their safeguarding programs to deal with these increasingly 
sophisticated methods of attack.\21\ For this reason, and in light of 
the increase in reported security breaches and the potential for 
identity theft among the institutions we regulate, we believe that our 
previous approach, requiring safeguards that must be reasonably 
designed to meet the GLBA's objectives, merits revisiting.\22\
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    \20\ Some institutions regulated by the Commission have already 
taken steps to strengthen their policies and procedures for 
safeguarding investors' information, such as by offering investors 
the use of password-generating tokens for online brokerage accounts. 
We also note that some firms have been sharing information about 
suspicious activity with one another for the purpose of combating 
identity theft. To the extent it might involve sharing nonpublic 
personal information about consumers of the firms, Regulation S-P 
does not prohibit such information sharing because Section 
15(a)(2)(ii) of Regulation S-P permits firms to disclose nonpublic 
personal information to a nonaffiliated third party for the purpose 
of protecting against fraud without first giving consumers notice of 
and an opportunity to opt out of the disclosures.
    \21\ According to a September 2007 report from Deloitte Touche 
Tohmatsu, for example, 37 percent of 169 surveyed financial 
institutions do not have an information security strategy in place, 
and 33 percent of these institutions do not conduct vulnerability 
testing, or only do so on an ad hoc basis. See Deloitte Touche 
Tohmatsu, 2007 Global Security Survey, at 12, 36 (Sept. 2007), 
http://www.deloitte.com/dtt/cda/doc/content/dtt_gfsi_
GlobalSecuritySurvey_20070901%281%29.pdf (last visited Nov. 6, 
2007).
    \22\ In 2004 we sought comment on whether to revise our 
safeguards rule to require institutions to address certain elements 
in designating their safeguarding policies and procedures. See 
Disposal of Consumer Report Information, Exchange Act Release No. 
50361, IAA Release No. 2293, ICA Release No. 20596 (Sept. 14, 2004), 
69 FR 56304 (Sept. 20, 2004) (``Disposal Rule Proposing Release''), 
at section II.B. At that time we decided not to revise the 
safeguards rule, but noted we would consider the comments we 
received in the event we proposed any amendment to the rule. See 
Disposal Rule Adopting Release, supra note 15, at section II.B. See 
also infra note 31.
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    We also are concerned that while the information protected under 
the safeguards rule and the disposal rule includes certain personal 
information, it does not include other information that could be used 
to access investors' financial information if obtained by an 
unauthorized user. Finally we want to address other issues under 
Regulation S-P that have come to our attention, including the 
application of the regulation to situations in which a representative 
of one broker-dealer or registered investment adviser moves to another 
firm. Accordingly, today we are proposing amendments to the safeguards 
and disposal rules that are designed to address these concerns.

II. Discussion

    To help prevent and address security breaches in the securities 
industry and thereby better protect investor information, we propose to 
amend Regulation S-P in four principal ways. First, we propose to 
require more specific standards under the safeguards rule, including 
standards that would apply to data security breach incidents. Second, 
we propose to amend the scope of the information covered by the 
safeguards and disposal rules and to broaden the types of institutions 
and persons covered by the rules. Third, we propose to require 
institutions subject to the safeguards and disposal rules to maintain 
written records of their policies and procedures and their compliance 
with those policies and procedures. Finally, we are taking this 
opportunity to propose a new exception from Regulation S-P's notice and 
opt-out requirements to allow investors more easily to follow a 
representative who moves from one brokerage or advisory firm to 
another.

A. Information Security and Security Breach Response Requirements

    To help prevent and address security breaches at the institutions 
we regulate, we propose to require more specific standards for 
safeguarding personal information, including standards for responding 
to data security breaches. When we adopted Regulation S-P in 2001, the 
safeguards rule simply required institutions to adopt policies and 
procedures to address the safeguarding objectives stated in the GLBA. 
Following our adoption of the rule, the FTC and the Banking Agencies 
issued regulations with more detailed standards for safeguarding 
customer

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records and information applicable to the institutions they 
regulate.\23\ We believe these standards include necessary elements 
that institutions should address when adopting and implementing 
safeguarding policies and procedures. We have therefore looked to the 
other agencies' standards in developing our proposal and tailored them, 
where appropriate, to develop proposed standards for the institutions 
we regulate.
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    \23\ The Banking Agencies issued their guidelines for 
safeguarding customer records and information in 2001. See 
Interagency Guidelines Establishing Standards for Safeguarding 
Customer Information and Rescission of Year 2000 Standards for 
Safety and Soundness, 66 FR 8616 (Feb. 1, 2001) (``Banking 
Agencies'' Security Guidelines''). The FTC adopted its safeguards 
rule in 2002. See Standards for Safeguarding Customer Information, 
67 FR 36484 (May 23, 2002) (``FTC Safeguards Rule''). The Banking 
Agencies also have jointly issued guidance on responding to 
incidents of unauthorized access or use of customer information. See 
Interagency Guidance on Response Programs for Unauthorized Access to 
Customer Information and Customer Notice, 70 FR 15736 (Mar. 29, 
2005) (``Banking Agencies'' Incident Response Guidance''). More 
recently, through the Federal Financial Institutions Examination 
Council (``FFIEC''), the Banking Agencies jointly issued guidance on 
the authentication of customers in an Internet banking environment, 
and the Banking Agencies and the FTC jointly issued final rules and 
guidelines for identity theft ``red flags'' programs to detect, 
prevent, and mitigate identity theft in connection with the opening 
of certain accounts or certain existing accounts. See FFIEC, 
Authentication in an Internet Banking Environment (July 27, 2006), 
available at www.ffiec.gov/pdf/authentication_guidance.pdf 
(``Authentication Guidance''); Banking Agencies and FTC, Identity 
Theft Red Flags and Address Discrepancies under the Fair and 
Accurate Credit Transactions Act of 2003, 72 FR 63718 (Nov. 9, 2007) 
(``Final Red Flag Rules''). See also Banking Agencies and FTC, 
Identity Theft Red Flags and Address Discrepancies Under the Fair 
and Accurate Credit Transactions Act of 2003, 71 FR 40785 (July 18, 
2006) (``Proposed Red Flag Guidelines''). In March of this year, the 
FTC also published a brochure on data security, Protecting Personal 
Information: A Guide for Business (available at http://www.ftc.gov/
infosecurity/), and the FDIC issued a Supervisory Policy on Identity 
Theft, FIL-32-2007 (Apr. 11, 2007), available at http://
www.fdic.gov/news/news/financial/2007/fil07032a.html.
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1. Revised Safeguarding Policies and Procedures
    As noted above, the safeguards rule requires institutions to adopt 
written policies and procedures that address administrative, technical 
and physical safeguards to protect customer records and information. 
The proposed amendments would further develop this requirement by 
requiring each institution subject to the safeguards rule to develop, 
implement, and maintain a comprehensive ``information security 
program,'' including written policies and procedures that provide 
administrative, technical, and physical safeguards for protecting 
personal information, and for responding to unauthorized access to or 
use of personal information.\24\ This program would have to be 
appropriate to the institution's size and complexity, the nature and 
scope of its activities, and the sensitivity of any personal 
information at issue.\25\ Consistent with current requirements for 
safeguarding policies and procedures, the information security program 
also would have to be reasonably designed to: (i) Ensure the security 
and confidentiality of personal information; (ii) protect against any 
anticipated threats or hazards to the security or integrity of personal 
information; and (iii) protect against unauthorized access to or use of 
personal information that could result in substantial harm or 
inconvenience to any consumer, employee, investor or securityholder who 
is a natural person.\26\ Although the term ``substantial harm or 
inconvenience'' is currently used in the safeguards rule, it is not 
defined. We propose to define the term to mean ``personal injury, or 
more than trivial financial loss, expenditure of effort or loss of 
time.'' \27\ This definition is intended to include harms other than 
identity theft that may result from failure to safeguard sensitive 
information about an individual. For example, a hacker could use 
confidential information about an individual for extortion by 
threatening to make the information public unless the individual agrees 
to the hacker's demands. ``Substantial harm or inconvenience'' would 
not include ``unintentional access to personal information by an 
unauthorized person that results only in trivial financial loss, 
expenditure of effort or loss of time,'' such as if use of the 
information results in an institution deciding to change the 
individual's account number or password.\28\ The rule would provide an 
example of what would not constitute harm or inconvenience that rises 
to the level of ``substantial,'' which should help clarify the scope of 
what would constitute ``substantial harm or inconvenience.''
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    \24\ As amended, Section 30 would be titled, ``Information 
security programs for personal information; records of compliance.''
    \25\ See proposed paragraph (a)(1) of Section 30. The term 
``information security program'' would mean the administrative, 
technical, or physical safeguards used to access, collect, 
distribute, process, protect, store, use, transmit, dispose of, or 
otherwise handle personal information. See proposed paragraph (d)(6) 
of Section 30.
    \26\ See proposed paragraph (a)(2) of Section 30. Compare 17 CFR 
248.30(a)(1)-(3).
    \27\ See proposed paragraph (d)(12) of Section 30. ``Substantial 
harm or inconvenience'' would include theft, fraud, harassment, 
impersonation, intimidation, damaged reputation, impaired 
eligibility for credit, or the unauthorized use of the information 
identified with an individual to obtain a financial product or 
service, or to access, log into, effect a transaction in, or 
otherwise use the individual's account.
    \28\ See proposed paragraph (d)(12)(ii) of Section 30. Thus, for 
example the proposed definition would not encompass a firm's 
occasional, unintentional delivery of an individual's account 
statement to an incorrect address if the institution determined that 
the information was highly unlikely to be misused. This 
determination would have to be made promptly after the institution 
becomes aware of an incident of unauthorized access to sensitive 
personal information, and documented in writing. See proposed 
paragraph (a)(4)(iii) of Section 30.
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    The proposed amendments also would specify particular elements that 
a program meeting the requirements of Regulation S-P must include.\29\ 
These elements are intended to provide firms in the securities industry 
with detailed standards for the policies and procedures that a well-
designed information security program should include to address recent 
identity theft-related incidents such as firms in the securities 
industry losing data tapes and laptop computers and failing to dispose 
properly of sensitive personal information, and hackers hijacking 
online brokerage accounts.\30\ These elements also are intended to 
maintain consistency with information safeguarding guidelines and rules 
adopted by the Banking Agencies and

[[Page 13696]]

FTC.\31\ In addition, these elements are consistent with policies and 
procedures we understand many institutions in the securities industry 
have already adopted. We understand that large and complex 
organizations generally have written policies that address information 
safeguarding procedures at several layers, from an organization-wide 
policy statement to detailed procedures that address particular 
controls.\32\
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    \29\ Many of these elements are addressed by widely accepted 
information security standards. See, e.g., National Institute of 
Standards and Technology (``NIST''), Special Publication 800 series 
(Computer Security), for example Generally Accepted Principals and 
Practices for Securing Information Technology Systems (SP 800-14) 
(Sept. 1996), Guide to Intrusion Detection and Prevention Systems 
(IDPS) (SP 800-94) (Feb. 2007), and Guide to Secure Web Services (SP 
800-95) (Aug. 2007) (all available at http://csrc.nist.gov/
publications/PubsSPs.html), and bulletins dealing with computer 
security published by the NIST's Information Technology Laboratory 
(ITL), for example Secure Web Servers: Protecting Web Sites That Are 
Accessed By The Public (ITL January 2008) (available at http://
csrc.nist.gov/publications/PubsITLSB.html); Federal Information 
System Controls Audit Manual, General Accounting Office, Accounting 
and Information Management Division, Federal Information System 
Controls Audit Manual, GAO/AIMD-12.19.6 (known as ``FISCAM'') (Jan. 
1999) (available at http://www.gao.gov/special.pubs/ai12.19.6.pdf); 
International Organization for Standardization, Code of Practice for 
Information Security Management (ISO/IEC 27002:2005) (known among 
information security professionals as the ``British Standard,'' and 
formerly designated BS ISO/IEC 17799:2005 and BS 7799-1:2005) 
(available for purchase at http://www.standardsdirect.org/
iso17799.htm and at http://www.bsi-global.com/en/Shop/Publication-
Detail/?pid=000000000030166440); and Information Systems Audit and 
Control Association/IT Governance Institute, Control Objectives for 
Information and Related Technology (known as ``COBIT'') (last 
updated, and published as version 4.1, May 2007) (available at 
http://www.isaca.org).
    \30\ See supra notes 16-19 and accompanying text.
    \31\ See Banking Agencies' Security Guidelines and FTC 
Safeguards Rule, supra note 23. As noted above, we sought comment on 
whether to revise our safeguards rule in 2004. See supra note 22. At 
that time, several commenters noted that Rule 206(4)-7 under the 
Investment Advisers Act (17 CFR 275.206(4)-7) and Rule 38a-1 under 
the Investment Company Act (17 CFR 270.38a-1) require registered 
investment advisers and registered investment companies to have 
written policies and procedures reasonably designed to prevent 
violation of the federal securities laws, including safeguards for 
the protection of customer records and information under Regulation 
S-P. These rules also require registered investment advisers and 
funds to review, no less frequently than annually, the adequacy of 
these policies and procedures. See Comment Letter of the Investment 
Counsel Association of America (Oct. 20, 2004), at p. 3; Comment 
Letter of the Investment Company Institute (Oct. 20, 2004) at p. 2. 
Each of these letters is available at http://www.sec.gov/comments/
s73304.shtml. We do not intend for the proposed amendments to alter 
or conflict with these requirements.
    \32\ See Disposal Rule Proposing Release, supra note 22, at 69 
FR 56308 & n.29.
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    Institutions subject to the rule would be required to:
    (i) Designate in writing an employee or employees to coordinate the 
information security program; \33\
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    \33\ See proposed paragraph (a)(3)(i) of Section 30. Of course, 
the employee or employees designated to coordinate an institution's 
information security program would need to have sufficient authority 
and access to the institution's managers, officers and directors to 
effectively implement the program and modify it as necessary.
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    (ii) Identify in writing reasonably foreseeable security risks that 
could result in the unauthorized disclosure, misuse, alteration, 
destruction or other compromise of personal information or personal 
information systems; \34\
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    \34\ See proposed paragraph (a)(3)(ii) of Section 30. The term 
``personal information system'' would mean any method used to 
access, collect, store, use, transmit, protect or dispose of 
personal information. See proposed paragraph (d)(9) of Section 30.
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    (iii) Design and document in writing and implement information 
safeguards to control the identified risks; \35\
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    \35\ See proposed paragraph (a)(3)(iii) of Section 30.
---------------------------------------------------------------------------

    (iv) Regularly test or otherwise monitor and document in writing 
the effectiveness of the safeguards' key controls, systems, and 
procedures, including the effectiveness of access controls on personal 
information systems, controls to detect, prevent and respond to 
attacks, or intrusions by unauthorized persons, and employee training 
and supervision; \36\
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    \36\ See proposed paragraph (a)(3)(iv) of Section 30.
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    (v) Train staff to implement the information security program; \37\
---------------------------------------------------------------------------

    \37\ See proposed paragraph (a)(3)(v) of Section 30.
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    (vi) Oversee service providers by taking reasonable steps to select 
and retain service providers capable of maintaining appropriate 
safeguards for the personal information at issue, and require service 
providers by contract to implement and maintain appropriate safeguards 
(and document such oversight in writing); \38\ and
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    \38\ See proposed paragraph (a)(3)(vi) of Section 30.
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    (vii) Evaluate and adjust their information security programs to 
reflect the results of the testing and monitoring, relevant technology 
changes, material changes to operations or business arrangements, and 
any other circumstances that the institution knows or reasonably 
believes may have a material impact on the program.\39\
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    \39\ See proposed paragraph (a)(3)(vii) of Section 30. This 
requirement is similar to the requirement in the Banking Agencies' 
Security Guidelines that institutions covered by those guidelines 
monitor, evaluate, and adjust, as appropriate, their information 
security program in light of any relevant changes in technology, the 
sensitivity of their customer information, internal or external 
threats to information, and their own changing business 
arrangements, such as mergers and acquisitions, alliances and joint 
ventures, outsourcing arrangements, and changes to customer 
information systems. See supra note 23, Banking Agencies' Security 
Guidelines, 66 FR at 8634, 8635-36, 8637, 8639, 8641. The ``material 
impact'' standard in proposed paragraph (a)(3)(iii) is intended to 
require adjustment of a covered institution's information security 
program only when a reasonable coordinator of the program would 
consider adjusting the program important in light of changing 
circumstances.
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    The term ``service provider'' would mean any person or entity that 
receives, maintains, processes, or otherwise is permitted access to 
personal information through its provision of services directly to a 
person subject to the rule.\40\ We understand that in large financial 
complexes, a particular affiliate may be responsible for providing a 
particular service for all affiliates in the complex. In that 
circumstance, each financial institution subject to Regulation S-P 
would be responsible for taking reasonable steps to ensure that the 
service provider is capable of maintaining appropriate safeguards and 
of overseeing the service provider's implementation, maintenance, 
evaluation, and modifications of appropriate safeguards for the 
institution's personal information. Under the proposed amendments, we 
anticipate that a covered institution's reasonable steps to evaluate 
the information safeguards of service providers could include the use 
of a third-party review of those safeguards such as a Statement of 
Auditing Standards No. 70 (``SAS 70'') report, a SysTrust report, or a 
WebTrust report.\41\
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    \40\ See proposed paragraph (d)(11) of Section 30.
    \41\ See Codification of Accounting Standards and Procedures, 
Statement on Auditing Standards No. 70, Reports on Processing of 
Transactions by Service Organizations (American Inst. of Certified 
Public Accountants). See also description and comparison of these 
reports at http://infotech.aicpa.org/Resources/
System+Security+and+Reliability/System+Reliability/
Principles+of+a+Reliable+System/
SAS+No+70+SysTrust+and+WebTrust+A+Comparison.htm.
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    We request comment on the proposed specific standards for 
safeguarding personal information.
     Would these standards provide sufficient direction to 
institutions? Are there particular standards that should be more or 
less prescriptive? For example, should institutions be required to 
designate an employee or employees to coordinate the information 
security program by name, or should institutions be permitted to make 
these designations by position or office?
     Would additional standards be appropriate or are certain 
standards unnecessary? Should the proposed standards be modified to 
more closely or less closely resemble standards prescribed by the 
Banking Agencies or the FTC? For the securities industry, are there any 
other standards that a well-designed information security program 
should address? Are there any other standards that would provide more 
flexibility to covered institutions?
     We also invite comment on the proposed requirement that 
entities assess the sufficiency of safeguards in place, to control 
reasonably foreseeable risks. Should the rules include more detailed 
standards and specifications for access controls? Should the 
requirement specify factors such as those identified in the Banking 
Agencies' guidance regarding authentication in an Internet banking 
environment or include policies and procedures such as those in the 
Banking Agencies and the FTC's proposed or final ``red flag'' 
requirements? \42\ For example, should we require that covered 
institutions implement multifactor authentication, layered security, or 
other controls for high-risk transactions involving access to customer 
information or the movement of funds to third parties? Should we 
require that covered institutions include in their information security 
programs ``red flag'' elements

[[Page 13697]]

that would be relevant to detecting, preventing and mitigating identity 
theft in connection with the opening of accounts or existing accounts, 
or in connection with particular types of accounts associated with a 
reasonably foreseeable risk of identity theft? Should we require that 
covered institutions adopt policies and procedures for evaluating 
changes of address followed closely by an account change or 
transaction, or for processing address discrepancy notices from 
consumer reporting agencies? If the rule were to include more detailed 
standards and specifications for access controls, how should these 
apply to business conducted by telephone?
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    \42\ See Authentication Guidance, Proposed Red Flag Guidance, 
and Final Red Flag Rules, supra note 23. The Authentication Guidance 
has been credited with helping to curtail online banking fraud, but 
has been characterized as not adequately addressing authentication 
in the context of telephone banking. See Daniel Wolfe, How New 
Authentication Systems are Altering Fraud Picture, Amer. Banker 
(Dec. 26, 2007).
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     Commenters are invited to discuss the proposed definition 
of ``substantial harm or inconvenience.'' Are there circumstances that 
commenters believe would create substantial harm or inconvenience to 
individuals that would not meet the proposed definition? If so, how 
should the definition be revised to address these circumstances?
     Commenters are invited to discuss the proposed 
requirements for written documentation of compliance with the proposed 
safeguarding provisions.
     Commenters are invited to discuss the proposed definition 
of ``service provider.'' They also are invited to discuss whether, if 
the proposed amendments are adopted, they should include or be 
accompanied by guidance on the use of outside evaluations of third-
party service providers. For example, should the Commission provide 
guidance similar to that provided by the FFIEC on the appropriate use 
of SAS 70 reports in evaluating the information safeguards of service 
providers? \43\
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    \43\ The FFIEC provided the following guidance on the use of SAS 
70 reports in the oversight of third-party service providers 
(``TSPs'') by financial institutions regulated by FFIEC member 
agencies:
    Financial institutions should ensure TSPs implement and maintain 
controls sufficient to appropriately mitigate risk. In higher-risk 
relationships the institution by contract may prescribe minimum 
control and reporting standards, obtain the right to require changes 
to standards as external and internal environments change, and 
obtain access to the TSP for institution or independent third-party 
evaluations of the TSP's performance against the standard. In lower 
risk relationships the institution may prescribe the use of 
standardized reports, such as trust services reports or a Statement 
of Auditing Standards 70 (SAS 70) report.
    * * * * *
    Financial institutions should carefully and critically evaluate 
whether a SAS 70 report adequately supports their oversight 
responsibilities. The report may not provide a thorough test of 
security controls and security monitoring unless requested by the 
TSP. It may not address the effectiveness of the security process in 
continually mitigating changing risks. Additionally, the SAS 70 
report may not address whether the TSP is meeting the institution's 
specific risk mitigation requirements. Therefore, the contracting 
oversight exercised by financial institutions may require additional 
tests, evaluations, and reports to appropriately oversee the 
security program of the service provider.
    FFIEC, FFIEC IT Examination Handbook, Information Security 
Booklet--July 2006, at 77, 78 (available at http://www.ffiec.gov/
ffiecinfobase/booklets/information_security/information_
security.pdf).
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2. Data Security Breach Response
    Because of the potential for harm or inconvenience to individuals 
when a data security breach occurs, we are proposing that information 
security programs include procedures for responding to incidents of 
unauthorized access to or use of personal information. These procedures 
would include notice to affected individuals if misuse of sensitive 
personal information has occurred or is reasonably possible. The 
procedures would also include notice to the Commission (or for certain 
broker-dealers, their designated examining authority \44\) under 
circumstances in which an individual identified with the information 
has suffered substantial harm or inconvenience or an unauthorized 
person has intentionally obtained access to or used sensitive personal 
information. The proposed rules that would require prompt notice of 
information security breach incidents to individuals, as well as the 
Commission or designated examining authorities, are intended to 
facilitate swift and appropriate action to minimize the impact of the 
security breach.
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    \44\ A broker-dealer's designated examining authority is the 
self-regulatory organization (``SRO'') of which the broker-dealer is 
a member, or, if the broker-dealer is a member of more than one SRO, 
the SRO designated by the Commission pursuant to 17 CFR 240.17d-1 as 
responsible for examination of the member for compliance with 
applicable financial responsibility rules (including the 
Commission's customer account protection rules at 17 CFR 240.15c3-
3).
---------------------------------------------------------------------------

    The data security breach response provisions of the proposed 
amendments include elements intended to provide firms in the securities 
industry with detailed standards for responding to a breach so as to 
protect against unauthorized use of compromised data. The proposed 
standards would specify procedures a covered institution's information 
security program would need to include. These procedures would be 
required to be written to provide clarity for firm personnel and to 
facilitate Commission and SRO examination and inspection. The proposed 
standards are intended to ensure that covered institutions adopt plans 
for responding to an information security breach incident so as to 
minimize the risk of identity theft or other significant investor harm 
or inconvenience from the incident. These proposed procedures also are 
intended to be consistent with security breach notification guidelines 
adopted by the Banking Agencies.\45\
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    \45\ See Banking Agencies' Incident Response Guidance, supra 
note 23.
---------------------------------------------------------------------------

    Under the proposed amendments, institutions subject to the rule 
would be required to have written procedures to:
    (i) Assess any incident involving unauthorized access or use, and 
identify in writing what personal information systems and what types of 
personal information may have been compromised; \46\
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    \46\ See proposed paragraph (a)(4)(i) of Section 30.
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    (ii) Take steps to contain and control the incident to prevent 
further unauthorized access or use and document all such steps taken in 
writing; \47\
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    \47\ See proposed paragraph (a)(4)(ii) of Section 30.
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    (iii) Promptly conduct a reasonable investigation and determine in 
writing the likelihood that the information has been or will be misused 
after the institution becomes aware of any unauthorized access to 
sensitive personal information; \48\ and
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    \48\ See proposed paragraph (a)(4)(iii) of Section 30.
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    (iv) Notify individuals with whom the information is identified as 
soon as possible (and document the provision of such notification in 
writing) if the institution determines that misuse of the information 
has occurred or is reasonably possible.\49\
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    \49\ See proposed paragraph (a)(4)(iv) of Section 30. 
Notification could be delayed, however, if an appropriate law 
enforcement agency determines that notification will interfere with 
a criminal investigation and requests in writing a delay in 
notification. We propose to require notification of individuals only 
if misuse of the compromised information has occurred or is 
reasonably possible to avoid requiring notification in circumstances 
in which there is no significant risk of substantial harm or 
inconvenience. If covered institutions were required to notify 
individuals of every instance of unauthorized access or use, such as 
if an employee accidentally opened and quickly closed an electronic 
account record, individuals could receive an excessive number of 
data breach notifications and become desensitized to incidents that 
pose a real risk of identity theft.
---------------------------------------------------------------------------

    We propose to define the term, ``sensitive personal information,'' 
to mean ``any personal information, or any combination of components of 
personal information, that would allow an unauthorized person to use, 
log into, or access an individual's account, or to establish a new 
account using the individual's identifying information,'' including the 
individual's Social Security number, or any one of the individual's 
name, telephone number, street address, e-mail address, or online user 
name, in combination with any one

[[Page 13698]]

of the individual's account number, credit or debit card number, 
driver's license number, credit card expiration date or security code, 
mother's maiden name, password, personal identification number, 
biometric authentication record, or other authenticating 
information.\50\ This definition is intended to cover the types of 
information that would be most useful to an identity thief, and to 
which unauthorized access would create a reasonable possibility of 
substantial harm or inconvenience to an affected individual.
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    \50\ See proposed paragraph (d)(10) of Section 30.
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    The amendments also would require an institution to provide notice 
to the Commission as soon as possible after the institution becomes 
aware of any incident of unauthorized access to or use of personal 
information in which there is a significant risk that an individual 
identified with the information might suffer substantial harm or 
inconvenience, or in which an unauthorized person has intentionally 
obtained access to or used sensitive personal information.\51\ This 
requirement would allow Commission and SRO investigators or examiners 
to review the notices to determine if an immediate investigative or 
examination response would be appropriate. In this regard, it is 
crucial that institutions respond promptly to any follow-up requests 
for records or information from our staff or the staff of the 
designated examining authority.\52\ Under the proposed amendments, a 
prompt response in accordance with existing Commission guidance on the 
timely production of records would be particularly important in 
circumstances involving ongoing misuse of sensitive personal 
information.
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    \51\ See proposed paragraph (a)(4)(v) of Section 30.
    \52\ See generally 15 U.S.C. 21(a) (investigative requests); 17 
CFR 240.17a 4(j) (examinations of broker-dealers); 17 CFR 275.204-
2(g) (examinations of investment advisers).
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    The regulatory notification requirement in the Banking Agencies' 
guidance requires a report to the appropriate regulator as soon as 
possible after the institution becomes aware of an incident involving 
unauthorized access to or use of sensitive customer information.\53\ 
Our proposed notice requirement differs from the Banking Agencies' 
approach in that it would require notice to the Commission (or a 
designated examining authority) when an incident of unauthorized access 
to or use of personal information poses a significant risk that an 
individual identified with the information might suffer substantial 
harm or inconvenience, or in which an unauthorized person has 
intentionally obtained access to or used sensitive personal 
information. The proposed notice requirement is intended to avoid 
notice to the Commission in every case of unauthorized access, and to 
focus scrutiny on information security breaches that present a greater 
potential likelihood for harm. We believe that this approach would help 
conserve institutions', as well as the Commission's, administrative 
resources by allowing minor incidents to be addressed in a way that is 
commensurate with the risk they present. The information to be included 
in the notice would allow the Commission or a broker-dealer's 
designated examining authority to evaluate whether any legal action 
against a would-be identity thief or other action is warranted in light 
of the circumstances. A broker-dealer, other than a notice-registered 
broker dealer, would be required to notify the appropriate designated 
examining authority on proposed Form SP-30. An investment company or 
registered investment adviser or transfer agent would be required to 
notify the Commission on proposed Form SP-30.\54\
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    \53\ See Banking Agencies' Incident Response Guidance, supra 
note 23, at 70 FR 15740-15741 (concluding that the Banking Agencies' 
standard for notification to regulators should provide an early 
warning to allow an institution's regulator to assess the 
effectiveness of an institution's response plan, and, where 
appropriate, to direct that notice be given to customers if the 
institution has not already done so).
    \54\ We anticipate that this form could be downloaded from our 
Web site and would be required to be filed electronically with the 
Registrations Branch in the Office of Compliance Inspections and 
Examinations. While broker-dealers generally would file the form 
with their designated examining authority rather than the 
Commission, investment advisers that are dually registered with the 
Commission as broker-dealers also would file with the Commission and 
indicate their dual-registrant status on the form.
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    Proposed Form SP-30 would require the institution to disclose 
information that the Commission (or the designated examining authority) 
needs to understand the nature of the unauthorized access or misuse of 
personal information and the institution's intended response to the 
incident.\55\ Accordingly, in addition to identifying and contact 
information for the covered institution, the form would request a 
description of the incident, when it occurred and what offices or parts 
of the registrant's business were affected. The form also would require 
disclosure of any third-party service providers that were involved, the 
type of services provided and, if the service provider is an affiliate, 
the nature of the affiliation. This information would help examiners to 
assess the information security policies and procedures of the service 
provider. In addition, the form would require a description of any 
customer account losses.
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    \55\ See proposed Form SP-30. Information submitted to the 
Commission on the form would be accorded confidential treatment to 
the extent permitted by law. See, e.g., 17 CFR 200.83. We realize 
that the full amount of losses may not be known at the time an 
information security breach is discovered, but we would expect 
covered institutions to make a good faith effort to complete the 
proposed form to the extent possible.
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    Under the proposed amendments, if a covered institution determined 
that an unauthorized person had obtained access to or used sensitive 
personal information, and that misuse of the information had occurred 
or was reasonably possible, the institution also would be required to 
provide notification, in a clear and conspicuous manner, to each 
individual identified with the information.\56\ The proposed 
requirements for notices to individuals are intended to give investors 
information that would help them protect themselves against identity 
theft. They also are intended to be consistent with similar 
requirements in the Banking Agencies' Incident Response Guidance.\57\
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    \56\ See proposed paragraph (a)(5) of Section 30.
    \57\ See Banking Agencies' Incident Response Guidance, supra 
note 23.
---------------------------------------------------------------------------

    The notices to affected individuals that would be required by the 
proposed amendments would have to:
    (i) Describe the incident and the type of information that was 
compromised, and what was done to protect the individual's information 
from further unauthorized access or use; \58\
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    \58\ See proposed paragraphs (a)(5)(i) and (a)(5)(ii) of Section 
30.
---------------------------------------------------------------------------

    (ii) Include a toll-free telephone number or other contact 
information for further information and assistance from the 
institution; \59\
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    \59\ See proposed paragraph (a)(5)(iii) of Section 30.
---------------------------------------------------------------------------

    (iii) Recommend that the individual review account statements and 
immediately report any suspicious activity to the institution; \60\ and
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    \60\ See proposed paragraphs (a)(5)(iv) and (a)(5)(v) of Section 
30.
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    (iv) Include information about FTC guidance regarding the steps an 
individual can take to protect against identity theft, a statement 
encouraging the individual to report any incidents of identity theft to 
the FTC, and the FTC's Web site address and toll-free telephone number 
for obtaining identity theft guidance and reporting suspected incidents 
of identity theft.\61\
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    \61\ See proposed paragraph (a)(5)(vi) of Section 30.

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[[Page 13699]]

    We request comment on the proposed specific standards relating to 
incidents of unauthorized access to or misuse of personal information.
     Commenters are invited to discuss the proposed 
requirements for procedures for responding to incidents of unauthorized 
access to or use of personal information. Are there any particular 
steps that may not be necessary, or not necessary in all situations? 
Are there any other steps that could be taken in response to a security 
breach that also should be required in some or all situations?
     We request comment on the proposed provisions regarding 
procedures for notifying the Commission (or a broker-dealer's 
designated examining authority) of incidents in which an individual 
identified with compromised information has suffered substantial harm 
or inconvenience, or an unauthorized person has intentionally obtained 
access to or used sensitive personal information.
     For example, should firms be required to provide notice 
only if the information compromised in an incident is identified with a 
certain number of individuals? Should the rule include a numerical or 
other threshold for when notice to the Commission (or to a broker-
dealer's designated examining authority) is required? If so, how would 
a threshold work for smaller institutions that may be far more likely 
than larger institutions to meet the threshold? Will the proposed 
standard provide a sufficient early warning to the Commission, or 
should the Commission broaden the circumstances under which notices 
would be required to be provided to the Commission (or to a broker-
dealer's designated examining authority), such as the standard adopted 
by the Banking Agencies? Commenters should explain their views.
     Is the proposed definition of ``sensitive personal 
information'' sufficient? Are there particular types of information 
that should or should not be included?
     We request comment on proposed Form SP-30. Is the form 
easy to understand and use? For example, is the form clear, or would 
additional guidance, such as instructions or further explanation of 
particular questions or terms be helpful? Would it be easier or more 
cost-effective for firms if the rule specified the information they are 
required to provide rather than provide a form? Would the form be more 
useful if it were in a tabular format? Commenters should be specific 
regarding changes they believe should be made to the content or format 
of the proposed form.
     Similarly, we invite comment on the proposed provisions 
regarding procedures for notifying individuals of incidents of 
unauthorized use or access if an institution determines that an 
unauthorized person has obtained access to or used the information and 
that misuse of sensitive personal information has occurred or is 
reasonably possible. Is the information in the proposed notice to 
individuals appropriate? Is there additional information that 
institutions should include, or information, proposed to be included, 
that should be eliminated? Is the proposed threshold for notice 
appropriate? If not, are there alternative thresholds for notice to 
individuals that would be more appropriate? If so, commenters should 
explain their views.
     Commenters are invited to discuss the proposed 
requirements for written documentation of compliance with the proposed 
incident response provisions.

B. Scope of the Safeguards and Disposal Rules

1. Information Covered by the Safeguards and Disposal Rules
    The Commission adopted the safeguards and disposal rules at 
different times under different statutes--respectively, the GLBA and 
the FACT Act--that differ in the scope of information they cover. As 
noted above, Regulation S-P implements the GLBA privacy provisions 
governing requirements for notice and opt out before an institution can 
share certain information with nonaffiliates and for safeguarding 
information. The regulation's notice and opt out provisions limit 
institutions from sharing ``nonpublic personal information'' about 
consumers and customers as defined in the GLBA and in Regulation S-P, 
with nonaffiliated third parties.\62\ As required under the GLBA, the 
safeguards rule requires covered institutions to maintain written 
policies and procedures to protect ``customer records and 
information,'' \63\ which is not defined in the GLBA or in Regulation 
S-P. The disposal rule requires institutions to properly dispose of 
``consumer report information,'' a third term, which Regulation S-P 
defines consistent with the FACT Act provisions.\64\ Each of these 
terms includes a different set of information, although the terms 
include some of the same information.\65\ Each term also does not 
include some information that, if obtained by an unauthorized user, 
could permit access to personal financial information about an 
institution's customers. We preliminarily believe that in order to 
provide better protection against the unauthorized disclosure of this 
personal financial information, the scope of information protected by 
both the safeguards rule and the disposal rule should be broader. 
Broadening the scope of information covered by the safeguards and 
disposal rules would more appropriately implement Section 525 of the 
GLBA. Section 525 directs the Commission to revise its regulations as 
necessary to ensure that covered institutions have policies, 
procedures, and controls in place to prevent the unauthorized 
disclosure of ``customer financial information.'' Section 521 of Title 
V of the GLBA prohibits persons from obtaining or requesting a person 
to obtain, customer information by making false or fraudulent 
statements to an officer, employee, agent, or customer of a financial 
institution.\66\ In furtherance of these prohibitions, the GLBA directs 
the Commission and the other federal financial regulators to review 
their regulations and to revise them as necessary to ensure that 
financial institutions have policies, procedures and controls in place 
to prevent the unauthorized disclosure of ``customer financial 
information'' and to deter and detect the activity described in Section 
521.\67\ Applying both the safeguards and disposal rules to a 
consistent set of information also could reduce any burden that may 
have been created by the application of the safeguards and disposal 
rules to different information.\68\
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    \62\ See 15 U.S.C. 6802(a), (b). ``Nonpublic personal 
information'' is generally defined in the GLBA and Regulation S-P as 
encompassing personally identifiable financial information, as well 
as any list, description, or other grouping of consumers (and 
publicly available information pertaining to them) derived using any 
personally identifiable financial information that is not publicly 
available, subject to certain exceptions. See 15 U.S.C. 6809(4); 17 
CFR 248.3(t) and 248.3(u). See supra note 12 for a discussion of the 
notice and opt out provisions.
    \63\ See 17 CFR 248.30; 15 U.S.C. 6801(b)(1).
    \64\ 17 CFR 248.30(b)(2). Section 628(a)(1) of the FCRA directed 
the Commission to adopt rules requiring the proper disposal of 
``consumer information, or any compilation of consumer information, 
derived from consumer reports for a business purpose.'' 15 U.S.C. 
1681w(a)(1). Regulation S-P uses the term ``consumer report 
information'' and defines it to mean a record in any form about an 
individual ``that is a consumer report or is derived from a consumer 
report.'' 17 CFR 248.30(b)(1)(ii). ``Consumer report'' has the same 
meaning as in Section 603(d) of the Fair Credit Reporting Act (15 
U.S.C. 1681(d)). 17 CFR 248.30(b)(1)(i).
    \65\ See Disposal Rule Adopting Release, supra note 15, at 69 FR 
71323 n.13.
    \66\ See 15 U.S.C. 6821(a), (b).
    \67\ See 15 U.S.C. 6825.
    \68\ See David Annecharico, Note, Online Transactions: Squaring 
the Gramm-Leach-Bliley Act Privacy Provisions With the FTC Fair 
Information Practice Principles, 6 N.C. Banking Inst. 637, 662 
(2002), available at http://www.unc.edu/ncbank/
Articles%20and%20Notes%20PDFs/Volume%206/DavidAnnecharico%5Bpp637-
664%5D.pdf (``To require financial institutions to treat the 
security of consumer information on par with customer information 
may be cost effective and efficient. It could merely mean storing 
consumer information within the already mandated secure storage 
systems that are being used to store customer information.'').

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[[Page 13700]]

    Accordingly, we propose to amend the safeguards and disposal rules 
so that both protect ``personal information,'' and to define that term 
to encompass any record containing either ``nonpublic personal 
information'' or ``consumer report information.'' \69\ As noted above, 
each of these terms is defined in Regulation S-P.\70\ The term 
``consumer report information'' would continue to mean any record about 
an individual, whether in paper, electronic or other form, that is a 
consumer report or is derived from a consumer report, as well as a 
compilation of such records, but not including information that does 
not identify individuals, such as aggregate information or blind 
data.\71\ The proposed amendments would leave the meaning of the term 
``consumer report'' unchanged from the definition set forth in Section 
603(d) of the FCRA.\72\ Section 603(d) defines ``consumer report'' in 
general as encompassing communications of information by a consumer 
reporting agency bearing on a consumer's creditworthiness, credit 
standing, reputation or particular other factors used in connection 
with establishing the consumer's eligibility for credit or insurance, 
or for employment purposes or other authorized purposes, subject to 
certain exclusions.\73\
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    \69\ Proposed paragraph (d)(8) of Section 30.
    \70\ See 17 CFR 248.3(t)(1) (definition of ``nonpublic personal 
information''); 17 CFR 248.30(b)(ii) (definition of ``consumer 
report information'').
    \71\ See proposed paragraph (c)(4) of Section 30 and current 
paragraph (b)(ii) of Section 30 (definition governing current 
disposal requirements).
    \72\ See proposed paragraph (d)(3) of Section 30.
    \73\ See 15 U.S.C. 1681a(d).
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    In addition to nonpublic personal information and consumer report 
information, ``personal information'' also would include information 
identified with any consumer, or with any employee, investor, or 
securityholder who is a natural person,\74\ in paper, electronic or 
other form, that is handled by the institution or maintained on the 
institution's behalf.\75\ Thus, for example, the definition would 
include records of employee user names and passwords maintained by a 
brokerage firm, and records about securityholders maintained by a 
transfer agent. We believe safeguarding employee user names and 
passwords promotes information security because unauthorized access to 
this information could facilitate unauthorized access to a firm's 
network and its clients' personal information.\76\ Safeguarding 
information about investors and securityholders, such as maintained by 
registered transfer agents, is necessary to protect investors who may, 
directly or indirectly, do business with the Commission's regulated 
entities even though they may not be ``consumers'' or ``customers'' of 
those entities as those terms are defined for purposes of Regulation S-
P.\77\ We also propose to make a conforming change to the definition of 
``personally identifiable financial information'' by including within 
the definition information that is handled or maintained by a covered 
institution or on its behalf, and that is identified with any consumer, 
or with any employee, investor, or securityholder who is a natural 
person.\78\ We preliminarily believe that this change would be 
appropriate in the public interest and for the protection of investors 
because it would help protect information identified with an investor 
who may not be a ``consumer'' or ``customer'' of a covered institution.
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    \74\ This element of the definition would exclude information 
identified only with persons other than natural persons, such as 
corporations. The GLBA limits the protections provided under 
subtitle A of the privacy provisions to ``consumers,'' who are 
individuals who obtain from a financial institution financial 
products or services to be used for personal, family or household 
purposes. 15 U.S.C. 6809(9). The FACT Act defines a ``consumer'' to 
mean an individual. 15 U.S.C. 1681a(c).
    \75\ See proposed paragraph (d)(8) of Section 30.
    \76\ See supra note 17 and accompanying text.
    \77\ As discussed supra at note 7, Regulation S-P defines the 
terms ``consumer'' and ``customer'' at 17 CFR 248.3(g) and 248.3(j), 
respectively.
    \78\ See proposed new paragraph (u)(1)(iv) of Section 3. The 
proposed amendments also would include technical, conforming changes 
to references to Section 30 in Sections 1(b) and 2(b) of Regulation 
S-P.
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    To better protect investors'' and securityholders' information from 
unauthorized disclosure, the proposed amendments would apply the 
safeguards and disposal rules to nonpublic personal information or 
consumer report information that is identified with any individual 
consumer, employee, investor or securityholder and handled or 
maintained by or on behalf of the institution. The proposal to include 
personal information and consumer report information about employees of 
covered institutions is intended to reduce the risk that a would-be 
identity thief could access investor information by impersonating an 
employee or employing ``social engineering'' techniques or bribery.
    Including consumer report information within the definition of 
``personal information'' (to which the safeguards rule would apply) 
would be consistent with the congressional intent behind making 
consumer report information subject to the disposal requirements set 
forth in the FACT Act.\79\ Furthermore, the proposed scope of 
protection appears to be consistent with the practices of many covered 
institutions that currently protect employee information, consumer 
report information, and nonpublic personal information about consumers 
and customers in the same manner.\80\
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    \79\ The disposal rule was intended to reduce the risk of fraud 
or related crimes, including identity theft, by ensuring that 
records containing sensitive financial or personal information are 
appropriately redacted or destroyed before being discarded. See 108 
Cong. Rec. S13,889 (Nov. 4, 2003) (statement of Sen. Nelson).
    \80\ Based on our staff's informal discussions with industry 
representatives about Regulation S-P issues, as well as the 
estimated costs and benefits of the proposed amendments we believe 
that many covered institutions currently protect both kinds of 
information in the same way out of prudence and for reasons of 
operational efficiency. See infra section V.B.
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    We invite comment on the proposed definition of ``personal 
information.''
     Should the safeguards rule extend to consumer report 
information that is not nonpublic personal information?
     Should the disposal rule extend to nonpublic personal 
information that is not consumer report information?
     To what extent do institutions currently take the same 
measures in disposing of consumer report information, customer records 
and information, nonpublic personal information about consumers and 
customers, and information other than consumer report information that 
is identified with employees, investors, or securityholders who are not 
consumers or customers? To the extent that measures are different, what 
is the basis for those differences?
     Is the proposed definition of ``personal information,'' 
which includes all records containing either consumer report 
information or nonpublic personal information, broad enough to 
encompass the information that needs to be protected? If not, how 
should we expand the definition? Are there any aspects of the proposed 
definition that, in the context of the information security 
requirements discussed below, may be over-inclusive with regard to 
particular types of entities? If so, how should we tailor the 
definition?
     The proposed definition of ``personal information'' 
encompasses

[[Page 13701]]

information identified with any consumer, or with any employee, 
investor, or securityholder who is a natural person. Are there any 
other persons whose information should be protected under the 
safeguards rule, or should the safeguards rule cover only information 
identified with individuals who are customers of a financial 
institution?
     Should the proposed definition of ``personal information'' 
be expanded to include information identified with non-natural persons, 
such as corporate clients? Commenters should explain their views.
2. Institutions Covered by the Safeguards Rule
    As discussed above, the safeguards rule currently applies to 
brokers, dealers, registered investment advisers, and investment 
companies. The disposal rule currently applies to those entities as 
well as to registered transfer agents. We propose to extend the 
safeguards rule to apply to registered transfer agents.\81\ These 
institutions, like those currently subject to both the safeguards and 
disposal rules, may maintain personal information such as Social 
Security numbers, account numbers, passwords, account balances, and 
records of securities transactions and positions. Unauthorized access 
to or misuse of such information could result in substantial harm and 
inconvenience to the individuals identified with the information. The 
proposed amendments thus would require that covered institutions that 
may receive personal information in the course of effecting, processing 
or otherwise supporting securities transactions must protect that 
information by maintaining appropriate safeguards in addition to taking 
measures to properly dispose of the information.\82\ Registered 
transfer agents may maintain sensitive personal information about 
investors, the unauthorized access to or use of which could cause 
investors substantial inconvenience or harm. Therefore, we 
preliminarily believe that extending the safeguards rule to registered 
transfer agents would be appropriate in the public interest and for the 
protection of investors.\83\
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    \81\ The term ``transfer agent'' would be defined by proposed 
paragraph (d)(14) of Section 30 to have the same meaning as in 
Section 3(a)(25) of the Exchange Act (15 U.S.C. 78c(a)(25)).
    As discussed below, we also propose to extend the disposal rule 
to associated persons of broker-dealers, supervised persons of 
registered investment advisers, and associated persons of registered 
transfer agents.
    \82\ The proposed definition of ``personal information'' would 
include information about individual investors maintained by 
registered transfer agents even though transfer agents typically do 
not have consumers or customers for purposes of Regulation S-P 
because their clients generally are not individuals, but are the 
companies in which investors, including individuals, hold shares.
    \83\ Under Section 17A of the Exchange Act (15 U.S.C. 78q-1) the 
Commission has authority to prescribe rules and regulations for 
transfer agents as necessary or appropriate in the public interest, 
for the protection of investors, or otherwise in furtherance of the 
purposes of Title I of the Exchange Act.
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    The proposed amendments also would limit the scope of broker-
dealers covered by the safeguards rule to brokers or dealers other than 
those registered by notice with the Commission under Section 15(b)(11) 
of the Exchange Act.\84\ Notice-registered broker-dealers must comply 
with the privacy rules, including rules requiring the safeguarding of 
customer records and information, adopted by the CFTC.\85\ Excluding 
notice-registered broker-dealers from the scope of the Commission's 
safeguards rule would clarify that both sets of rules do not apply to 
notice-registered broker-dealers, and that the CFTC would have primary 
responsibility for oversight of those broker-dealers in this area.
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    \84\ Proposed paragraph (a)(1) of Section 30. See 15 U.S.C. 
78o(b)(11). The Commodity Futures Modernization Act of 2000 
established a system of notice registration under which trading 
facilities and intermediaries that are already registered with 
either the Commission or the CFTC may register with the other agency 
on an expedited basis for the limited purpose of trading security 
futures products. Under the substituted compliance provision in 
Section 2(b) of Regulation S-P (17 CFR 248.2(b)), CFTC-regulated 
futures commission merchants and introducing brokers that are 
registered by notice with the Commission and in compliance with the 
financial privacy rules of the CFTC are deemed to be in compliance 
with Regulation S-P, except with respect to Regulation S-P's 
disposal rule (currently 17 CFR 248.30(b)). Notice-registered 
broker-dealers are already excluded from the scope of the disposal 
rule.
    \85\ See 17 CFR 160.30.
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    We seek comment on the proposed scope of the safeguards rule.
     Should registered transfer agents be subject to the 
safeguards rule? To what extent are registered transfer agents expected 
to possess, or lack, the type of information that could be used to 
commit identity theft or otherwise cause individuals substantial harm 
or inconvenience? \86\ Are there special issues that registered 
transfer agents might have in implementing or meeting the requirements 
of the safeguards rule?
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    \86\ Such information could include address and account 
information used to disseminate shareholder communications and 
dividend and interest payments, as well as information collected 
pursuant to Rule 17Ad-17 under the Exchange Act (17 CFR 240.17Ad-
17), which requires transfer agents registered with the Commission 
to use taxpayer identification numbers or names to search databases 
for addresses of lost securityholders.
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     Should the Commission propose to extend the safeguards and 
disposal rules to self-regulatory organizations or other types of 
institutions in the securities industry? If so, which ones?
     Should notice-registered broker-dealers be excluded from 
the scope of the proposed amended safeguards rule? If not, why not?
3. Persons Covered by the Disposal Rule
    As noted above, the disposal rule currently applies to broker-
dealers, investment companies, registered investment advisers and 
registered transfer agents. We propose to extend the disposal rule to 
apply to natural persons who are associated persons of a broker or 
dealer, supervised persons of a registered investment adviser, and 
associated persons of a registered transfer agent.\87\ As noted above, 
we have become concerned that some of these persons, who may work in 
branches far from the registered entity's main office, may not dispose 
of sensitive personal financial information consistent with the 
registered entity's disposal policies. The proposal is intended to make 
persons associated with a covered institution directly responsible for 
properly disposing of personal information consistent with the 
institution's policies.
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    \87\ See proposed paragraph (b)(1) of Section 30. The term 
``associated person of a broker or dealer'' would be defined by 
proposed paragraph (d)(1) of Section 30 to have the same meaning as 
in Section 3(a)(18) of the Exchange Act (15 U.S.C. 78c(a)(18)). The 
term ``supervised person of an investment adviser'' would be defined 
by proposed paragraph (d)(13) of Section 30 to have the same meaning 
as in Section 202(a)(25) of the Investment Advisers Act of (15 
U.S.C. 80b-2(a)(25)). We are proposing to include ``supervised'' 
persons of an investment adviser, rather than ``associated'' persons 
in order to include all employees, including clerical employees, of 
an investment adviser who may be responsible for disposing of 
personal information. See 15 U.S.C. 80b-2(a)(17) (defining term 
``person associated with an investment adviser'' not to include 
associated persons whose functions are clerical or ministerial). 
This approach is intended to cover the same range of employees as 
investment advisers, broker-dealers, and registered transfer agents. 
The term ``associated person of a transfer agent'' would be defined 
by proposed paragraph (d)(2) of Section 30 to have the same meaning 
as in Section 3(a)(49) of the Exchange Act (15 U.S.C. 78c(a)(49).
    An additional proposed extension to the scope of the disposal 
rule is discussed below. See infra section II.B.
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     We request comment on the proposed extension of the scope 
of the disposal rule to apply to natural persons who are associated 
with broker-dealers, supervised persons of registered investment 
advisers, or who are associated persons of registered transfer agents.
     Are there alternative ways of helping to ensure that these 
persons would follow the covered institution's disposal policies and 
properly dispose of personal information?

[[Page 13702]]

C. Records of Compliance

    We further propose to amend Regulation S-P to require institutions 
subject to the safeguards and disposal rules to make and preserve 
written records of their safeguards and disposal policies and 
procedures. We also propose to require that institutions document that 
they have complied with the elements required to develop, maintain and 
implement these policies and procedures for protecting and disposing of 
personal information, including procedures relating to incidents of 
unauthorized access to or misuse of personal information. These records 
would help institutions assess their policies and procedures 
internally, and help examiners to monitor compliance with the 
requirements of the amended rules. The periods of time for which the 
records would have to be preserved would vary by institution, because 
the requirements would be consistent with existing recordkeeping rules, 
beginning with when the records were made, and, for records of written 
policies and procedures, after any change in the policies or procedures 
they document.\88\ Broker-dealers would have to preserve the records 
for a period of not less than three years, the first two years in an 
easily accessible place. Registered transfer agents would have to 
preserve the records for a period of not less than two years, the first 
year in an easily accessible place. Investment companies would have to 
preserve the records for a period not less than six years, the first 
two years in an easily accessible place. Registered investment advisers 
would have to preserve the records for five years, the first two years 
in an appropriate office of the investment adviser. We believe that 
these proposed recordkeeping provisions, while varying among covered 
institutions, would all result in the maintenance of the proposed 
records for sufficiently long periods of time and in locations in which 
they would be useful to examiners. Moreover, we do not believe that 
shorter or longer maintenance periods would be warranted by any 
difference between the proposed records and other records that covered 
institutions currently must maintain for these lengths of time. We also 
believe that conforming the proposed retention periods to existing 
requirements would allow covered institutions to minimize their 
compliance costs by integrating the proposed requirements into their 
existing recordkeeping systems.\89\
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    \88\ See proposed paragraph (c) of Section 30.
    \89\ See 17 CFR 240.17a-4(b); 240.17Ad-7(b); 270.31a-2(a)(4)-
(6); 275.204-2(e)(1).
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    We request comment on the proposed requirements for making and 
retaining records.
     Are the proposed periods of time for preserving the 
records appropriate, or should certain records be preserved for 
different periods of time?
     Would the costs associated with preserving records for 
periods of time consistent with covered institutions' other 
recordkeeping requirements be less than they would be if all 
institutions were required to keep these records for the same period of 
time?

D. Exception for Limited Information Disclosure When Personnel Leave 
Their Firms

    Finally, we propose to amend Regulation S-P to add a new exception 
from the notice and opt out requirements to permit limited disclosures 
of investor information when a registered representative of a broker-
dealer or a supervised person of a registered investment adviser moves 
from one brokerage or advisory firm to another. The proposed exception 
is intended to allow firms with departing representatives to share 
limited customer information with the representatives' new firms that 
could be used to contact clients and offer them a choice about whether 
to follow a representative to the new firm. At many firms, 
representatives develop close professional and personal relationships 
with investors over time. Representatives at such firms likely remember 
the basic contact information for their clients or have recorded it in 
their own personal records. Some firms discourage departing 
representatives from soliciting clients to move to another firm, while 
others do not. At any firm, departing representatives may have a strong 
incentive to transfer as much customer information as possible to their 
new firms, and it has been brought to our attention that, at some 
firms, information may have been transferred without adequate 
supervision, in contradiction of privacy notices provided to customers, 
or potentially in violation of Regulation S-P.\90\
---------------------------------------------------------------------------

    \90\ See, e.g., In re NEXT Financial Group, Inc., supra note 16.
---------------------------------------------------------------------------

    The proposed exception is designed to provide an orderly framework 
under which firms with departing representatives could share certain 
limited customer contact information and could supervise the 
information transfer.\91\ The proposed exception would permit one firm 
to disclose to another only the following information: the customer's 
name, a general description of the type of account and products held by 
the customer, and contact information, including address, telephone 
number and e-mail information.\92\ We propose to include this 
particular information as it would be useful for a representative 
seeking to maintain contact with investors, but appears unlikely to put 
an investor at serious risk of identity theft. It also is the type of 
information an investor would expect a representative to remember. 
Broker-dealers and registered investment advisers seeking to rely on 
the exception would have to require their departing representatives to 
provide to them, not later than the representative's separation from 
employment, a written record of the information that would be disclosed 
pursuant to the exception, and broker-dealers and registered investment 
advisers would be required to preserve such records consistent with the 
proposed recordkeeping provisions of Section 30.\93\ This condition is 
intended

[[Page 13703]]

to help ensure that firms relying on the exception are appropriately 
accounting for the information they are disclosing in connection with 
departures of their representatives.\94\
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    \91\ In 2004, certain large broker-dealers entered into a 
protocol under which signatories agreed not to sue one another for 
recruiting one another's registered representatives, if the 
representatives take only limited client information to another 
participating firm. The initial signatories, Citigroup Global 
Markets/Smith Barney, Merrill Lynch, and UBS Financial Services, 
were joined more recently by Raymond James, Wachovia Securities and 
others.
    We understand that, under the protocol, the information that a 
departing representative may take to another firm is limited to each 
client's name, address, a general description of the type of account 
and products held by the client, and the client's phone number and 
e-mail address. This information may be used at the representative's 
new firm only by the representative, and only for the purpose of 
soliciting the representative's former clients.
    We further understand that there may be some confusion in the 
securities industry regarding what information may be disclosed to a 
departing representative's new firm consistent with the limitations 
in Regulation S-P, and that at times these limitations may cause 
inconvenience to investors. NASD (now consolidated into FINRA) 
issued guidance to its member firms regarding the permissible and 
impermissible use of ``negative response letters'' for bulk 
transfers of customer accounts and changes in the broker-dealer of 
record on certain types of accounts (see NASD NtM 04-72 (Oct. 2004); 
NtM 02-57 (Sept. 2002)). More recently, FINRA issued guidance 
relating to Regulation S-P in the context special considerations 
firms should use to supervise recommendations of newly associated 
registered representatives to replace mutual funds and variable 
products). See FINRA, Regulatory Notice 07-36, available at http://
www.finra.org/web/groups/rules_regs/documents/notice_to_members/
p036445.pdf. However, our staff reports that scenarios involving 
representatives moving from one firm to another continue to create 
uncertainty regarding firms' obligations under Regulation S-P.
    \92\ See proposed paragraph (a)(8)(i) of Section 15.
    \93\ See proposed paragraph (a)(8)(iii) of Section 15 and 
proposed paragraph (c) of Section 30. For purposes of the proposed 
exception, the term ``representative'' would be defined to mean a 
natural person associated with a broker or dealer registered with 
the Commission, who is registered or approved in compliance with 17 
CFR 240.15b7-1, or a supervised person of an investment adviser as 
defined in Section 202(a)(25) of the Investment Advisers Act. See 
proposed paragraph (a)(8)(iv) of Section 15.
    \94\ Most firms seeking to rely on the proposed exception would 
not need to revise their GLBA privacy notices because they already 
state in the notices that their disclosures of information not 
specifically described include disclosures permitted by law, which 
would include disclosures made pursuant to the proposed exception 
and the other exceptions provided in Section 15 of Regulation S-P.
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    The exception would be subject to conditions that are designed to 
limit the potential that the information would result in identity theft 
or other abuses. The shared information could not include any 
customer's account number, Social Security number, or securities 
positions.\95\ A representative would not need this type of information 
to contact investors, although it would be useful to an identity thief, 
and an investor probably would not expect a representative to remember 
it. In addition, a representative could solicit only an institution's 
customers that were the representative's clients. This condition 
recognizes that an investor might expect to be contacted by a 
representative with whom the investor has done business before, but not 
by another person at the representative's new firm.\96\
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    \95\ See proposed paragraph (a)(8)(ii) of Section 15.
    \96\ See proposed paragraph (a)(8)(i) of Section 15 (permitting 
a representative to solicit customers to whom the representative 
personally provided a financial product or service on behalf of the 
institution).
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    As noted above, the proposed exception is designed to facilitate 
the transfer of client contact information that would help broker-
dealers and registered investment advisers offer clients the choice of 
following a departing representative to a new firm. At firms that 
choose to rely on it, the proposed exception also should reduce 
potential incentives some representatives may have to take information 
with them secretly when they leave. By specifically limiting the types 
of information that could be disclosed to the representative's new 
firm, the proposed amendments are designed to help firms safeguard more 
sensitive client information. This limitation also would clarify that a 
firm may not require or expect a representative from another firm to 
bring more information than necessary for the representative to solicit 
former clients. Because the proposed exception is designed to promote 
investor choice, provide legal certainty, and reduce potential 
incentives for improper disclosures, we preliminarily believe that it 
would be necessary or appropriate in the public interest, and is 
consistent with the protection of investors.
    The proposed exception would not limit the disclosure of additional 
information to a new firm pursuant to a customer's consent or 
direction.\97\ It also would not preclude the disclosure of additional 
information required in connection with the transfer of a customer's 
account.\98\ Depending on its business organization, its policies 
regarding departing representatives and the circumstances of a 
representative's departure, a firm could choose to rely on existing 
exceptions rather than the proposed new exception.\99\ The proposed 
exception is designed to allow firms that choose to share limited 
contact information to do so. The proposed exception would not, 
however, affect firm policies that prohibit the transfer of any 
customer information other than at the customer's specific direction.
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    \97\ For example, if an investor chooses to move his or her 
business to the representative's new firm, he or she may consent to 
having the original firm disclose additional information about the 
customer's account to the representative's new firm without the firm 
first having to provide the customer with an opt out. See 17 CFR 
248.15(a)(1).
    \98\ If an investor requests or authorizes the transfer of his 
or her account from the representative's old firm to the 
representative's new firm, the old firm may disclose additional 
information as necessary to effect the account transfer. See 17 CFR 
248.14(a)(1) and 248.14(b)(2)(vi)(B). The exception also would not 
preclude the disclosure of additional information about the investor 
if the firm has provided the investor with a privacy notice 
describing the disclosure and given the investor a reasonable 
opportunity to opt out of the disclosure, and the customer has not 
opted out. See 17 CFR 248.10. Thus, covered institutions that wish 
to disclose an investor's nonpublic personal information to a 
departing representative's new firm without relying on the proposed 
new exception or without first obtaining consent from the investor 
to the disclosure or to an account transfer could revise their 
privacy notices to describe disclosures the firm would make in the 
context of a representative's move to another broker-dealer or 
registered investment adviser.
    \99\ See 17 CFR 248.14, 248.15.
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    We have chosen to propose this approach as opposed to an 
alternative approach that would require all firms to include specific 
notice and opportunity to opt out of this information sharing in their 
initial and annual privacy notices. Under this alternative, a broker-
dealer or registered investment adviser's privacy notice would have to 
provide specific disclosure regarding the circumstances under which the 
broker-dealer or adviser would share customer information with another 
firm when a registered representative or supervised person leaves. We 
have chosen this approach because, as indicated earlier, many 
representatives develop close professional and personal relationships 
with investors. They are likely to remember basic contact information 
for their clients or have recorded it in their own personal records, 
and investors would expect representatives to have this information. 
This type of limited contact information is unlikely to put investors 
at serious risk of identity theft. Also, we believe that a description 
of disclosures to a departing representative's new firm would be 
difficult to distinguish from the description of disclosures made for 
the purpose of third-party marketing and would further complicate 
already complex privacy notices.
     Commenters are invited to discuss the proposed new 
exception. Would it permit the transfer of contact information so as to 
promote investor choice and convenience? Would it foreclose the 
transfer of particularly sensitive information that, if misused, could 
lead to identity theft? Should the transfer of customer contact 
information be conditioned on the broker-dealer or registered 
investment adviser receiving the information certifying to the sharing 
institution that it complies with the safeguards and disposal rules?
     We also invite commenters to share their views on the 
likely effect of the proposed new exception on competition in 
recruiting broker-dealer and investment adviser representatives. Are 
there alternative approaches that would both protect investor 
information and not unduly restrict the transfer of representatives 
from one firm to another?
     We seek comment on potential alternative approaches, 
including requiring specific disclosure. Are investors, particularly 
new clients to a firm, likely to understand disclosures about 
information that would be given to a departing representative's new 
firm in initial or annual privacy notices? \100\ Should the 
availability of the proposed exemption be conditioned on providing 
investors with specific disclosure regarding whether a covered 
institution would disclose personal information in connection with a 
representative's departure?
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    \100\ We expect that if the Banking Agencies, the FTC and the 
Commission were to adopt the proposed model privacy form, see 
Interagency Model Privacy Form Proposal, supra note 12, the 
description of the disclosure to a nonaffiliated firm could be 
included on page 2 of the proposed form in the section defining 
nonaffiliates.
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     The proposed exception would permit broker-dealers and 
registered investment advisers to transfer limited

[[Page 13704]]

information to other broker-dealers and registered investment advisers 
without first providing notice and opt out. Should we make the proposed 
exception available for information transferred to other types of 
financial institutions where a departing representative may go? For 
example, should we permit broker-dealers and registered investment 
advisers to rely on the exception to share information with investment 
advisers that are not registered with the Commission?
     Commenters are invited to express their views on the 
proposed exemption's condition that a departing representative of a 
covered institution relying on this exemption could solicit only the 
institution's customers that were the representative's clients.

III. General Request for Comments

    We request comment on all aspects of the proposed amendments to 
Regulation S-P. We particularly urge commenters to suggest other 
provisions or changes that could enhance the ways in which securities 
industry participants protect personal information. We encourage 
commenters to provide empirical data, if available, to support their 
views.

IV. Paperwork Reduction Act

    Certain provisions of the proposed amendments contain ``collections 
of information'' requirements within the meaning of the Paperwork 
Reduction Act of 1995 (``PRA'').\101\ The Commission is submitting 
these amendments to the Office of Management and Budget (``OMB'') for 
review and approval in accordance with the PRA.\102\ The title for the 
collections of information is ``Information security programs for 
personal information; records of compliance.'' The safeguards and 
disposal rules we propose to amend contain currently approved 
collections of information under OMB Control No. 3235-0610, the title 
of which is, ``Rule 248.30, Procedures to safeguard customer records 
and information; disposal of consumer report information.'' \103\ The 
Commission is proposing to amend Regulation S-P's safeguards and 
disposal rules, 17 CFR 248.30(a) and (b), pursuant to Sections 501, 
504, 505, and 504 of the GLBA,\104\ Sections 17, 17A, 23, and 36 of the 
Exchange Act,\105\ Sections 31(a) and 38 of the Investment Company 
Act,\106\ and Sections 204 and 211 of the Investment Advisers Act.\107\ 
Regulation S-P sets forth the Commission's safeguards rule for 
institutions covered by the regulation. Among other things, the 
safeguards rule requires covered institutions to adopt administrative, 
technical, and physical information safeguards to protect customer 
records and information. Regulation S-P also contains the Commission's 
disposal rule, which requires institutions to properly dispose of 
consumer report information possessed for a business purpose by taking 
reasonable measures to protect against unauthorized access to or use of 
the information in connection with its disposal.
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    \101\ 44 U.S.C. 3501-3520.
    \102\ 44 U.S.C. 3507(d) and 5 CFR 1320.11.
    \103\ The paperwork burden imposed by Regulation S-P's notice 
and opt-out requirements, 17 CFR 248.1 to 248.18, is currently 
approved under a separate OMB control number, OMB Control No. 3235-
0537. The proposed amendments would not affect this collection of 
information.
    \104\ 15 U.S.C. 6801, 6804, 6805 and 6825.
    \105\ 15 U.S.C. 78q, 78q-1, 78w, and 78mm.
    \106\ 15 U.S.C. 80a-30(a), 80a-37.
    \107\ 15 U.S.C. 80b-4, 80b-11.
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    The proposed amendments are designed to ensure that covered 
institutions maintain a reasonable information security program that 
includes safeguarding policies and procedures that are more specific 
than those currently required, including policies and procedures for 
responding to data security breach incidents, for notifying individuals 
for whom the incidents pose a risk of identity theft, and for reporting 
certain incidents to the Commission (or to a broker-dealer's designated 
examining authority) on proposed Form SP-30. The amendments also would 
broaden the scope of information and the types of institutions and 
persons covered by the safeguards and disposal rules. Finally, the 
amendments would create a new exception from Regulation S-P's notice 
and opt-out requirements for disclosures of limited information in 
connection with the departure of a representative of a broker-dealer or 
registered investment adviser. Firms choosing to rely on the exception 
would be required to keep records of the information disclosed pursuant 
to it.
    The hours and costs associated with these collections of 
information would consist of reviewing the proposed amendments, 
collecting and searching for existing policies and procedures, 
conducting a risk assessment, developing and recording information 
safeguards appropriate to address risks, training personnel, and 
adjusting written safeguards on an ongoing basis. Institutions would 
also have to respond appropriately to incidents of data security breach 
as may occur on an ongoing basis. If misuse of information has occurred 
or is reasonably possible, this would include notifying affected 
individuals. If there is a significant risk that an individual 
identified with the information might suffer substantial harm or 
inconvenience, or any unauthorized person has intentionally obtained 
access to or used sensitive personal information, this would also 
include notifying the Commission or an appropriate designated examining 
authority as soon as possible on proposed Form SP-30. Certain of these 
collections of information also would require disclosure, reporting, 
and recordkeeping burdens, as analyzed below.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless a currently valid OMB 
control number is displayed. Responses to these collections of 
information would not be kept confidential.\108\ The collections of 
information would be mandatory, and would have to be maintained by 
broker-dealers for not less than three years, the first two years in an 
easily accessible place, by registered transfer agents for a period of 
not less than two years, the first year in an easily accessible place, 
by investment companies for a period not less than six years, the first 
two years in an easily accessible place, and registered investment 
advisers would have to preserve the records for five years, the first 
two years in an appropriate office of the investment adviser.
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    \108\ Information submitted to the Commission on proposed Form 
SP-30 would be kept confidential to the extent permitted by law. See 
supra note 55.
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Information Security and Security Breach Response Requirements
    The proposed amendments contain collections of information 
requirements related to the more specific standards we are proposing 
for safeguarding personal information, including standards for 
responding to data security breaches. We believe these proposed 
collections of information are necessary to help prevent and address 
security breaches and designed to ensure that covered institutions 
maintain a reasonable information security program pursuant to the 
statutory requirements. Covered institutions would have to document in 
writing steps they would be required to take to develop, implement, and 
maintain a comprehensive information security program. We estimate that 
there would be 12,432 respondents to this information collection.\109\ 
Of these

[[Page 13705]]

covered institutions, we estimate that 5,862 are smaller institutions 
and 6,570 are larger institutions. \110\
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    \109\ This estimate includes 6,016 broker-dealers, 4,733 
investment companies representing portions of 813 fund complexes, 77 
business development companies, 9,860 registered investment 
advisers, and 501 registered transfer agents. As discussed in more 
detail in the cost-benefit analysis below, the staff estimates that 
56 percent of these 17,267 institutions, or 9,670 institutions, have 
one or more affiliates. The staff estimates, for purposes of this 
analysis, that each of the affiliated institutions has one corporate 
affiliate. The staff estimates that these affiliated institutions 
are likely to bear these paperwork burdens on an organization-wide 
basis, rather than being incurred by each institution. Based on 
these estimates, the staff estimates there would be 12,432 
respondents to this information collection. (17,267 - (9,670 / 2) = 
12,432) These estimates are discussed in more detail in the cost-
benefit analysis, see infra note 149 and accompanying text.
    \110\ See infra note 154 and accompanying text.
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    Based on limited inquiries of covered institutions, the staff 
estimates that the amount of time smaller institutions would devote to 
initial compliance with the proposed amendments would range from 2 to 
80 hours with a midpoint of 41 hours.\111\ This estimate reflects the 
following burden hours: 1 hour for the board of directors to designate 
an information security program coordinator; 1 hour for the program 
coordinator to review the amendments; 4 hours to assess risks and 
review procedures; 10 hours to review, revise and implement new 
safeguards (including any data breach notification procedures); 8 hours 
to test the effectiveness of the safeguards controls and procedures; 7 
hours to train staff; and 10 hours to review service providers' 
policies and procedures and revise contracts as necessary to require 
them to maintain appropriate safeguards. The staff estimates that 
initially it would cost smaller institutions approximately $18,560 to 
comply with the proposed amendments.\112\ Amortized over three years, 
the estimated annual hourly burden would be 14 hours at a cost of 
approximately $6,187.
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    \111\ The staff estimate uses the midpoint of the range of 
hours, although the average number of burden hours could be higher 
or lower. Our estimates are based on staff contacts with several 
institutions regarding their current safeguarding and disposal 
policies and procedures as well as the potential costs of the 
proposed amendments. Because the staff was able to discuss these 
issues with only a small number of very large institutions, and our 
estimates in this analysis are based largely on this information, 
our estimates may be much higher or lower than the range of actual 
current costs related to compliance with Regulation S-P and the 
range of potential costs associated with the proposed amendments.
    \112\ This estimate is based on a cost of $2,000 for one hour of 
the board of directors' time (at $2,000/hour) and $16,560 for 40 
hours of a program coordinators' time (at $414/hour). Staff believes 
that the program coordinator would be a senior executive of the 
institution, such as a chief compliance officer of an investment 
adviser. For purposes of this PRA analysis, the staff is using 
salaries for New York-based employees which tend to be higher than 
the salaries for comparable positions located outside of New York. 
This conservative approach is intended to capture unforeseen costs 
and to account for the possibility that a substantial portion of the 
work would be undertaken in New York. The salary information is 
derived from data compiled by the Securities Industry and Financial 
Markets Association. The Commission staff has modified this 
information to account for an 1,800-hour work year and multiplied by 
5.35 to account for bonuses, firm size, employee benefits, and 
overhead. See Securities Industry and Financial Markets Association, 
Report on Management and Professional Earnings in the Securities 
Industry (2007); Securities Industry and Financial Markets 
Association, Report on Office Salaries in the Securities Industry 
(``SIFMA Earnings Reports'').
---------------------------------------------------------------------------

    The staff estimates that the amount of time larger institutions 
would devote to initial compliance with the proposed amendments would 
range from 40 hours to 400 hours with a midpoint of 220 hours.\113\ 
This estimate reflects the following burden hours: 2 hours for the 
board of directors to designate an information security program 
coordinator; 2 hours for the program coordinator to review the 
amendments; 42 hours to assess risks and review procedures; 60 hours to 
review, revise and implement new safeguards (including any data breach 
notification procedures); 60 hours to test the effectiveness of the 
safeguards controls and procedures; 34 hours to train staff; and 20 
hours to review service providers policies and procedures and revise 
contracts as necessary to require them to maintain appropriate 
safeguards. The staff estimates that larger institutions would spend 
approximately $172,732 to comply with the proposed amendments 
initially.\114\ Amortized over three years, the estimated annual hourly 
burden would be 73 hours at a cost of approximately $57,577.
---------------------------------------------------------------------------

    \113\ The staff estimate uses the midpoint of the range of 
hours, although the average number of burden hours could be higher 
or lower.
    \114\ This estimate is based on a cost of $4,000 for 2 hours of 
board of directors' time (at $2,000/hour) and $168,732 for 218 hours 
of a group of compliance professionals' time (at $774/hour). The 
staff believes that this group of compliance professionals would 
include the program coordinator at a rate of $414 per hour, an in-
house attorney at a rate of $295 per hour, and an administrative 
assistant at a rate of $65 per hour. See SIFMA Earnings Reports, 
supra note 112. In total, we estimate that this group of compliance 
professionals would cost the larger institution $758 per hour. $414 
+ $295 + $65 = $774.
---------------------------------------------------------------------------

    On an annual, ongoing basis the staff estimates that the amount of 
time smaller institutions would devote to ongoing compliance with the 
safeguards and disposal rules, as they are proposed to be amended, 
would range from 12 hours to 40 hours per year with a midpoint of 26 
hours per year. This estimate reflects the following burden hour 
estimates: 5 hours to regularly test or monitor the safeguards' key 
controls, systems, and procedures; 3 hours to augment staff training; 3 
hours to provide continued oversight of service providers; 3 hours to 
evaluate and adjust safeguards; 10 hours to respond appropriately to 
potential incidents of data security breach, including investigating 
the breach and, as necessary, notifying affected individuals; and 2 
hours to notify the Commission or a designated examining authority as 
soon as possible on proposed Form SP-30, in the event there is a 
significant risk that an individual identified with the information 
might suffer substantial harm or inconvenience or an unauthorized 
person has intentionally obtained access to or used sensitive personal 
information.\115\ We believe that most institutions investigate data 
security breaches as a matter of good business practice to protect 
their business operations and the sensitive information they have about 
employees and clients. Nevertheless, we have estimated additional 
burden hours because the proposed rule specifies certain elements of 
the investigation and the notice to affected individuals. We also 
believe that an institution would have gathered all the information 
that would have to be disclosed in Form SP-30 in the course of these 
investigations of data security breaches. Thus, staff estimates for the 
Form SP-30 collection of information burden reflect only the time it 
would take to draft the information on the form. Staff estimates that 
smaller institutions would spend an additional $10,764 per institution 
per year in connection with these burdens.\116\
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    \115\ We estimate that each covered institution that has 
developed and adopted and is maintaining safeguarding policies and 
procedures will experience some form of breach of data security each 
year. See, e.g., Deloitte & Touche LLP and Ponemon Institute LLC, 
Enterprise@Risk: 2007 Privacy & Data Protection Survey (Dec. 2007), 
http://www.deloitte.com/dtt/cda/doc/content/us_risk_s%26P_
2007%20Privacy10Dec2007final.pdf (last visited Dec. 19, 2007) (85% 
of surveyed privacy and security professionals experienced a 
reportable breach within the past 12 months). These data security 
breaches may range from minor breaches (such as an individual who 
accidentally sees data that he or she does not have authority to 
view) to more serious breaches. Accordingly, we have estimated that 
each of these institutions would experience a data security breach 
that would require notice to the Commission (or a designated 
examining authority) each year. We understand that the nature of 
security breaches will vary widely within and among institutions, 
and that this estimate may be much higher than the actual reporting 
that would be required under the proposed rule.
    \116\ This estimate is based on the following calculation: 26 
hours per smaller institution per year x $414 per hour = $10,764.
---------------------------------------------------------------------------

    The staff also estimates that the amount of time larger 
institutions would

[[Page 13706]]

devote to ongoing compliance with the proposed amendments would range 
from 32 hours to 100 hours with a midpoint of 66 hours per year. This 
estimate reflects the following burden hour estimates: 12 hours to 
regularly test or monitor the safeguards' key controls, systems, and 
procedures; 9 hours to augment staff training; 9 hours to provide 
continued oversight of service providers; 10 hours to evaluate and 
adjust safeguards; 20 hours to respond appropriately to potential 
incidents of data security breach, including investigating the breach 
and, as necessary, notifying affected individuals; and 6 hours to 
notify the Commission or a designated examining authority as soon as 
possible on proposed Form SP-30, in the event there is a significant 
risk that an individual identified with the information might suffer 
substantial harm or inconvenience or an unauthorized person has 
intentionally obtained access to or used sensitive personal 
information.\117\ Staff believes that larger institutions are likely to 
have more complex business operations and data systems and may 
experience more sophisticated security attacks than smaller 
institutions. As a result, staff anticipates that larger institutions 
are more likely to conduct more complicated investigations that require 
more detailed explanations on proposed Form SP-30. Staff estimates 
therefore that larger institutions would take more time to perform 
investigations and to complete the questions on proposed Form SP-
30.\118\ The staff estimates that larger institutions would spend 
approximately an additional $51,084 per institution per year.\119\
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    \117\ See supra note 115.
    \118\ We recognize that the time it takes to perform an 
investigation of a data security breach and to complete Form SP-30 
may vary significantly depending on the nature, size and complexity 
of an institution's business operations as well as the nature and 
size of the security breach. Accordingly, the actual time it may 
take a particular institution to investigate the breach and complete 
Form SP-30 may vary significantly from staff estimates.
    \119\ This estimate is based on the following calculation: 66 
hours x $774 = $51,084.
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    Given the estimates set forth above, we estimate that the weighted 
average initial burden for each respondent would be approximately 136 
hours \120\ and $100,036.\121\ We also estimate that the weighted 
average ongoing burden for each respondent would be approximately 47 
hours \122\ and $32,072.\123\
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    \120\ This estimate is based on the following calculation: 
((5,862 smaller institutions x 41 hours) + (6,570 larger 
institutions x 220 hours) / 12,432 total institutions = 135.60 
hours.
    \121\ This estimate is based on the following calculation: 
((5,862 smaller institutions x $18,560) + (6,570 larger institutions 
x $172,732)) / 12,432 total institutions = $100,036.03.
    \122\ This estimate is based on the following calculation: 
((5,862 smaller institutions x 26 hours) + (6,570 larger 
institutions x 66 hours)) / 12,432 total institutions = 47.14 hours.
    \123\ This estimate is based on the following calculation: 
((5,862 smaller institutions x $10,764) + (6,570 larger institutions 
x $51,084)) / 12,432 total institutions = $32,072.12.
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Scope of the Safeguards and Disposal Rules
    The amendments also would broaden the scope of information and of 
the entities covered by the safeguards and disposal rules. These 
amendments do not contain collections of information beyond those 
related to the information security and security breach response 
requirements, analyzed above.
Records of Compliance
    The proposed amendments would require that written records required 
under the disposal and safeguards rules be maintained and preserved by 
broker-dealers for not less than three years, the first two years in an 
easily accessible place, by registered transfer agents for a period of 
not less than two years, the first year in an easily accessible place, 
by investment companies for a period not less than six years, the first 
two years in an easily accessible place, and registered investment 
advisers would have to preserve the records for five years, the first 
two years in an appropriate office of the investment adviser. Covered 
institutions are already required pursuant to other Commission rules to 
maintain and preserve similar records in the same manner, and we do not 
believe that the currently approved collections of information for 
these rules would change based on the proposed amendments.\124\
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    \124\ See 17 CFR 240.17a-4(b); 240.17Ad-7(b); 270.31a-2(a)(4)-
(6); 275.204-2(e)(1).
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Exception for Limited Information Disclosure When Personnel Leave Their 
Firms
    The proposed amendments would create a new exception from 
Regulation S-P's notice and opt out requirements that would permit 
limited disclosures of investor information when a registered 
representative of a broker-dealer or supervised person of a registered 
investment adviser moves from one brokerage or advisory firm to 
another. This exception would require that the departing representative 
provide the broker, dealer, or registered investment adviser he or she 
is leaving with a written record of the permissible information that 
would be disclosed under this exception. Broker-dealers and registered 
investment advisers also would be required to retain a record of that 
information consistent with existing record retention requirements. All 
broker-dealers and registered investment advisers maintain records of 
their customers and clients, including relevant contact information and 
type of account. Thus, we estimate that allowing a departing 
representative to make a copy of this information and requiring the 
broker-dealer or registered investment adviser to retain a record of 
that information would not result in an additional measurable burden to 
the firm.
    We request comment on whether these estimates are reasonable. 
Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission solicits comments 
in order to: (i) Evaluate whether the proposed collections of 
information are necessary for the proper performance of the functions 
of the Commission, including whether the information will have 
practical utility; (ii) evaluate the accuracy of the Commission's 
estimate of the burden of the proposed collections of information; 
(iii) determine whether there are ways to enhance the quality, utility, 
and clarity of the information to be collected; and (iv) minimize the 
burden of the collections of information on those who are to respond, 
including through the use of automated collection techniques or other 
forms of information technology.
    Members of the public may direct to us any comments concerning the 
accuracy of these burden estimates and any suggestions for reducing 
these burden hours. Persons wishing to submit comments on the 
collection of information requirements of the proposed amendments 
should direct them to the Office of Management and Budget, Attention 
Desk Officer of the Securities and Exchange Commission, Office of 
Information and Regulatory Affairs, Room 10102, New Executive Office 
Building, Washington, DC 20523, and should send a copy to Nancy M. 
Morris, Secretary, Securities and Exchange Commission, 100 F Street, 
NE., Washington, DC 20549-1090 with reference to File No. S7-06-08. OMB 
is required to make a decision concerning the collections of 
information between 30 and 60 days after publication of this release; 
therefore a comment to OMB is best assured of having its full effect if 
OMB receives it within 30 days after the publication of this release. 
Requests for materials submitted to OMB by the Commission with regard 
to these collections of information should be in writing, refer to File 
No. S7-06-08, and be submitted to the Securities and Exchange 
Commission, Public Reference

[[Page 13707]]

Room, 100 F Street, NE., Washington, DC 20549.

V. Cost-Benefit Analysis

    The Commission is sensitive to the costs and benefits imposed by 
its rules. We have identified certain costs and benefits of the 
proposed amendments and request comment on all aspects of this cost-
benefit analysis, including identification and assessment of any costs 
and benefits not discussed in this analysis. We seek comment and data 
on the value of the benefits identified. We also welcome comments on 
the accuracy of the cost estimates in each section of this analysis, 
and request that commenters provide data so we can improve these cost 
estimates. In addition, we seek estimates and views regarding these 
costs and benefits for particular covered institutions, including 
registered transfer agents, as well as any other costs or benefits that 
may result from the adoption of these proposed amendments.
    As discussed above, the proposed rule amendments are designed to 
enhance covered institutions' information security policies and 
procedures as well as their ability to protect personal information. 
Under Regulation S-P, covered institutions have been required to 
safeguard customer records and information since 2001 and to dispose 
properly of consumer report information since 2005. The proposed 
amendments would modify Regulation S-P's current safeguards and 
disposal rules to: (i) Require more specific standards under the 
safeguards rule, including standards that would apply to data security 
breach incidents; (ii) broaden the scope of information and the types 
of institutions and persons covered by the rules; and (iii) require 
covered institutions to maintain written records of their policies and 
procedures and their compliance with those policies and procedures. The 
proposed amendments also would create a new exception from Regulation 
S-P's notice and opt-out requirements that would not unduly restrict 
the transfer of representatives from one broker-dealer or registered 
investment adviser to another while protecting customer information.

A. Costs and Benefits of More Specific Information Security and 
Security Breach Standards

    As noted, since 2001 broker-dealers, investment companies, and 
registered investment advisers have been required to adopt policies and 
procedures reasonably designed to insure the security and 
confidentiality of customer records and information, protect against 
anticipated threats or hazards, and protect against unauthorized access 
to or use of customer records and information.\125\ The proposed rule 
amendments would require more specific standards for safeguarding 
personal information, including standards for responding to data 
security breaches. The amendments would require covered institutions to 
develop, implement, and maintain a comprehensive ``information security 
program'' for protecting personal information and for responding to 
unauthorized access to or use of personal information that would have 
to be appropriate to the institution's size and complexity, the nature 
and scope of its activities, and the sensitivity of the personal 
information involved. The information security program would have to 
include seven safeguarding elements, as described above in section 
II.A. Our proposed amendments also would specifically require that 
institutions' information security programs include procedures for 
responding to incidents of unauthorized access to or use of personal 
information. We believe that these proposed amendments would be 
consistent with safeguarding guidance and rules issued by the Banking 
Agencies and the FTC.\126\
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    \125\ See 15 U.S.C. 6801; 17 CFR 248.30(a). The Commission also 
required that safeguarding policies and procedures be in writing by 
July 1, 2005. See Disposal Rule Adopting Release, supra note 15.
    \126\ See supra note 23 and accompanying text.
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1. Benefits of More Specific Information Security and Security Breach 
Standards
    We anticipate that the proposed amendments would benefit covered 
institutions and investors by providing specific standards for policies 
and procedures to safeguard investor information, boosting investor 
confidence and mitigating losses due to security breach incidents, 
helping to ensure that information security programs are actively 
managed and regularly updated, and reducing the compliance burden for 
institutions in the event of a data security breach incident.
    One benefit of the proposed information security and security 
breach standards would be to provide firms in the securities industry 
with detailed standards for the policies and procedures that a well-
designed information security program should include. As already noted, 
a significant increase in reported information security breaches 
involving covered institutions, including increasingly sophisticated 
identity theft attacks directed at the securities industry, have 
altered the risk environment and brought to our attention the 
vulnerability of certain of our institutions' information security 
policies and procedures.\127\ We are concerned that some Commission-
regulated institutions may not regularly reevaluate and update their 
safeguarding programs to deal with these increasingly sophisticated 
methods of attack. As a result, our staff has devoted increased 
attention to this area.
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    \127\ See supra notes 16-19 and accompanying text.
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    The current rule's reasonable design standard has permitted 
institutions flexibility to implement safeguarding policies and 
procedures tailored to their own privacy policies and practices and 
their varying business operations. While many institutions have 
appropriate safeguards in place, some institutions, including some 
smaller institutions, may have had difficulty keeping up with the 
changes in the threat environment. Setting out a more specific 
framework for institutions' continuing obligation to protect customer 
information, may ease institutions' burden in interpreting our 
expectations of safeguarding policies and procedures that are 
``reasonably designed,'' while retaining much of the current rule's 
flexibility.
    We believe the proposed amendments would be consistent with the 
Commission's initial statutory mandate under the GLBA to adopt, in 
2000, final financial privacy regulations that are consistent and 
comparable with those adopted by other federal financial 
regulators.\128\ As noted above, after our adoption of Regulation S-P's 
safeguards rule, the FTC and the Banking Agencies issued regulations 
with more detailed standards applicable to the institutions they 
regulate.\129\ The Banking Agencies also issued guidance for their 
institutions on responding to incidents of unauthorized access to or 
use of customer information.\130\ Our proposed amendments include 
safeguarding elements consistent with the regulatory provisions of 
these other agencies that Commission-regulated institutions would have 
to address in their safeguarding policies and procedures.\131\
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    \128\ See Section 504(a) of the GLBA (15 U.S.C. 6804(a)).
    \129\ See supra note 23 and accompanying text.
    \130\ Id.
    \131\ When the FTC adopted its safeguards rule, it stated that 
an entity that demonstrated compliance with the Banking Agencies' or 
NCUA's safeguarding standards also would satisfy the FTC rule. The 
FTC stated, however, that it would not automatically recognize an 
institution's compliance with other safeguards rules (including 
Regulation S-P) as satisfying the FTC Safeguards Rule. The FTC 
stated that it made this decision because ``such other rules and law 
do not necessarily provide comparable protection in terms of the 
safeguards mandated, data covered, and range of circumstances to 
which protection apply.'' See Standards for Safeguarding Customer 
Information, 67 FR 36484 (May 23, 2003), at text accompanying and 
following nn.28-33. Compliance with other Regulation S-P provisions, 
however, currently satisfies other FTC privacy requirements. Thus, 
we expect that making the safeguarding provisions of Regulation S-P 
comparable to the FTC's requirements would benefit institutions by, 
for example, permitting state-registered investment advisers to 
satisfy the FTC standards by complying with the Commission's 
safeguards rule, which was drafted to address investment advisory 
business models.

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[[Page 13708]]

    Covered institutions would benefit from having specific standards 
that are consistent and comparable to those already adopted by the 
Banking Agencies and the FTC in other ways. For example, covered 
institutions that have banking affiliates may have already developed 
policies and procedures consistent with the Banking Agencies' guidance 
that are applied to all affiliates of the bank. If they do not have the 
same policies and procedures, these covered institutions would be able 
to apply the banking affiliate's policies and procedures to the 
securities businesses with few changes. More specific safeguarding 
standards also could increase investor confidence in institutions and 
help mitigate losses that can result from lax safeguarding policies and 
procedures. Incidents of identity theft have affected a large number of 
Americans and are difficult and expensive for victims to deal with and 
correct.\132\ Moreover, there is at least anecdotal evidence that the 
wave of widely-reported incidents of data security breaches have played 
a role in discouraging a significant number of individuals from 
conducting business online.\133\ The proposed amendments could benefit 
investors and increase their confidence by providing firms with 
detailed standards for the processes that a well-designed information 
security program should include. This could result in enhanced 
protection for the privacy of investor information, and could decrease 
incidents of identity theft, thereby mitigating losses due to identity 
theft and other misuses of sensitive information. We also believe that 
the increased protection that could result from the proposed amendments 
could benefit institutions, which frequently incur the costs of 
fraudulent activity.\134\ Thus, if only a small number of security 
breach incidents were averted because the proposed amendments were 
adopted, there still could be a significant cost savings to individuals 
and institutions.\135\
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    \132\ In 2003 the FTC reported that up to 10 million Americans 
had been victimized by identity theft over a 12-month period and 
that these thefts cost businesses and consumers over $52 billion. 
See FTC, Identity Theft Survey Report (Sept. 2003), available at 
http://www.ftc.gov/os/2003/09/synovatereport.pdf.
    \133\ A July 2005 study found that 48 percent of consumers 
avoided making purchases on the Internet because they feared their 
personal information may be stolen. See Cyber Security Industry 
Alliance, Internet Voter Survey, at 9 (June 2005), https://
www.csialliance.org/publications/surveys_and_polls/CSIA_
Internet_Security_Survey_June_2005.pdf (last visited Nov. 6, 
2007).
    \134\ In most cases, financial institutions do not impose the 
losses associated with fraudulent activity on consumers. See, e.g., 
Testimony of Oliver I. Ireland, on Behalf of the Financial Services 
Coordinating Council, H.R. 3997, the ``Financial Data Protection Act 
of 2005,'' Before the Subcomm. on Financial Institutions and 
Consumer Credit, House Comm. on Financial Services (Nov. 9, 2005), 
available at http://www.sia.com/testimony/2005/ireland11-9-05.html.
    \135\ One research institution has estimated that the average 
cost of a data security breach incident per institution is $1.4 
million. See Ponemon Institute, LLC, 2006 Annual Study: Cost of a 
Data Breach (Oct. 2006), http://download.pgp.com/pdfs/Ponemon2-
Breach-Survey--061020--F.pdf (last visited Nov. 6, 2007). In 
addition, some investigations into data breach incidents have been 
reported to cost as much as $5 million. See Daniel Wolfe, Security 
Watch, Amer. Banker (Apr. 4, 2007).
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    As noted above, we are concerned that some institutions do not 
regularly reevaluate and update their safeguarding programs. Requiring 
covered institutions to designate in writing an employee or employees 
to coordinate their information security programs should foster clearer 
delegations of authority and responsibility, making it more likely that 
an institution's programs are regularly reevaluated and updated. Having 
an information security program coordinator also could contribute to an 
institution's ability to meet its affirmative and continuing obligation 
under the GLBA to safeguard customer information.\136\ If, for example, 
elements of a covered institution's information security program were 
not maintained on a consolidated basis, but were dispersed throughout 
an institution, we believe having a responsible program coordinator or 
coordinators should facilitate the institution's awareness of these 
elements, as well as enable it to better manage and control risks and 
conduct ongoing evaluations.
---------------------------------------------------------------------------

    \136\ See 15 U.S.C. 6801(a).
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    We expect that the proposed framework for the initial and ongoing 
oversight of institutions' information security programs--in the form 
of formal risk assessments, periodic testing or monitoring of key 
controls, systems, and procedures, staff training, and relevant 
evaluations and adjustments--would help to ensure that information 
security programs are appropriately updated along with relevant changes 
in technology, new business arrangements, changes in the threat 
environment, and other circumstances. Finally, the proposed amendment 
that would require covered institutions to take reasonable steps to 
select and retain service providers that are capable of maintaining 
appropriate safeguards and would require service providers by contract 
to implement and maintain appropriate safeguards should help to ensure 
that sensitive personal information is protected when it leaves the 
institution's custody, while still permitting institutions the 
flexibility to select appropriate service providers.
    The proposed requirement that information security programs include 
specific procedures for responding to incidents of unauthorized access 
to or use of personal information is designed to benefit investors and 
institutions. The requirement would benefit investors who receive 
notice of an information security breach pursuant to an institution's 
incident response procedures by allowing those investors to take 
precautions to the extent they believe necessary.\137\ The procedures 
also would benefit institutions by establishing a national data breach 
notification requirement for covered institutions.\138\ Currently at 
least 39 states have enacted statutes requiring notification of 
individuals in the event of a data security breach.\139\ This patchwork 
of overlapping and sometimes inconsistent regulation has created a 
difficult environment for financial institutions' compliance programs. 
However, many of the state statutes contain exemptions for entities 
regulated by federal data security breach regulations.\140\ 
Accordingly, the proposed amendments could benefit covered institutions 
by significantly reducing the number of requirements with which covered 
institutions must

[[Page 13709]]

comply.\141\ As noted, the banking regulators published similar data 
breach notification guidance in 2005.\142\
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    \137\ Often victims of identity theft are unaware of the crime 
until they are denied credit or employment, or are contacted by a 
debt collector for payment on a debt they did not incur. See 
Identity Theft Task Force, Combating Identity Theft, A Strategic 
Plan, p. 3 (Apr. 2007), available at http://www.idtheft.gov/reports/
StrategicPlan.pdf.
    \138\ Establishing national standards for data breach 
notification requirements was a recommendation of the Identity Theft 
Task Force. Id. at p. 35.
    \139\ See Government Accountability Office, Personal 
Information: Data Breaches Are Frequent, but Evidence of Resulting 
Identity Theft Is Limited; However, the Full Extent Is Unknown (Jun. 
4, 2007) at p. 2, and National Conference of State Legislatures, 
State Security Breach Notification Laws (as of Dec. 1, 2007), http:/
/www.ncsl.org/programs/lis/cip/priv/breachlaws.htm (last visited 
Dec. 10, 2007).
    \140\ See, e.g., Crowell & Moring LLP, State Laws Governing 
Security Breach Notification (last updated Apr. 2007), http://
www.crowell.com/pdf/SecurityBreachTable.pdf (last visited Dec. 10, 
2007).
    \141\ Under the proposed amendments, for example, using proposed 
Form SP-30 would satisfy an institution's obligations to notify the 
Commission or the appropriate designated examining authority. 
Because many state laws have exceptions from breach notification 
requirements for institutions subject to federal breach notification 
requirements, this would streamline institutions' current reporting 
obligations to numerous state authorities.
    \142\ See Interagency Guidance on Response Programs for 
Unauthorized Access to Customer Information and Customer Notice, 70 
FR 15736 (Mar. 29, 2005), available at http://www.occ.treas.gov/
consumer/Customernoticeguidance.pdf. The guidance supplements the 
Interagency Guidelines Establishing Standards for Safeguarding 
Information which was renamed the Interagency Guidelines 
Establishing Information Security Standards.
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    We request comment on available metrics to quantify these benefits 
and any other benefits the commenter may identify. In particular, we 
request comment reflecting institutions' experiences in safeguarding 
customer information and addressing the security breach incidents 
discussed above. Commenters are also requested to identify sources of 
empirical data that could be used for the metrics they propose.
2. Costs of More Specific Information Security and Security Breach 
Standards
    Some institutions would likely incur additional costs in reviewing, 
implementing, and maintaining more specific information security and 
security breach standards. Institutions could incur additional costs in 
reviewing current safeguarding policies and procedures and designing 
and implementing new ones, if necessary, on an initial basis. 
Institutions also could incur additional costs on an ongoing basis to 
maintain up-to-date information security programs and to respond 
appropriately to any data security breach incidents.
    According to Commission filings, approximately 6,016 broker-
dealers, 4,733 investment companies comprising portions of 813 fund 
complexes,\143\ 77 business development companies, 9,860 registered 
investment advisers, and 501 registered transfer agents, or 17,267 
covered institutions, would be required to comply with the proposed 
amendments' more specific information security and security breach 
standards.\144\ As noted, broker-dealers, investment companies, and 
registered investment advisers have been required to have reasonably 
designed safeguarding policies and procedures since 2001. In addition, 
transfer agents have been required to have information security 
safeguards since 2003, in accordance with the FTC Safeguards Rule.\145\ 
We estimate that 56 percent of all covered institutions, or 9,670 
institutions, have one or more financial affiliates (whether these 
institutions are regulated by the Commission or other federal financial 
regulators).\146\ We estimate that each of the affiliated institutions 
has one corporate affiliate. Based on limited inquiries of covered 
institutions, we believe that these affiliated institutions are likely 
to have developed safeguarding policies and procedures on an 
organization-wide basis, rather than each affiliate developing policies 
and procedures on its own.\147\ We also believe that the affiliate that 
developed the affiliated organization's safeguarding policies and 
procedures is also responsible for maintaining these policies and 
procedures. We therefore estimate that one-half of the covered 
affiliated institutions, or 4,835 institutions, have developed, 
documented, and are maintaining safeguarding policies and procedures, 
while the other half instead use the policies and procedures developed, 
documented, and maintained by their affiliate.\148\ Accordingly, we 
estimate that 12,432 covered institutions have developed and adopted 
safeguarding policies and procedures and are maintaining these policies 
and procedures in accordance with the current rule.\149\
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    \143\ Although the circumstances for every investment company 
vary, we believe that in general the costs of complying with the 
proposed rule amendments would be incurred on a per fund complex 
basis and not on a per fund basis because almost all investment 
companies are externally managed by affiliated organizations and 
independent contractors, who, if the proposals are adopted, are 
likely to review and implement the amended rules on behalf of all of 
the investment companies they manage. See, e.g., Investment Company 
Institute, A Guide to Understanding Mutual Funds, at 16, Sept. 2006, 
available at http://www.ici.org/pdf/bro_understanding_mfs_p.pdf 
(last visited Dec. 3, 2007). Thus, throughout this cost-benefit 
analysis we estimate the costs of compliance on a per fund complex 
basis.
    \144\ This estimate is based on the following calculation: 6,016 
+ 813 + 77 + 9,860 + 501 = 17,267.
    \145\ See supra note 23.
    \146\ The estimate that 56 percent of registrants have an 
affiliate is based upon statistics reported as of December 3, 2007 
on Form ADV, the Universal Application for Investment Adviser 
Regulation, which contains specific questions regarding affiliations 
between investment advisers and other persons in the financial 
industry. We estimate that other institutions subject to the 
safeguards rule would report a rate of affiliation similar to that 
reported by registered investment advisers. The estimate that 9,670 
institutions have an affiliate is based on the following 
calculation: 17,267 x 0.56 = 9,669.52.
    \147\ See supra note 109.
    \148\ This estimate is based on the following calculation: 9,670 
/ 2 = 4,835.
    \149\ This estimate is based on the following calculation: 
(17,267 - 9,670) + 4,835 = 12,432.
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    We expect that these institutions' current costs to maintain 
safeguarding policies and procedures in compliance with the 
Commission's safeguards rule vary greatly depending upon the size of 
the institution, its customer base, the complexity of its business 
operations, and the extent to which the institution engages in 
information sharing. Thus, for example, we estimate that small 
investment advisers with fewer than 10 employees require more limited 
safeguarding policies and procedures to address a limited scope of 
information transfer, storage, and disposal. We believe that larger 
broker-dealers or fund complexes, by contrast, are more likely to have 
and maintain a more extensive set of information safeguarding policies 
and procedures, corresponding to these institutions' more complex 
business activities and information sharing practices.
    Of the covered institutions, we estimate that 7,030 registered 
investment advisers have 10 or fewer employees.\150\ We estimate that 
942 broker-dealers and investment company complexes are small 
institutions, and are likely to have no more than 10 employees.\151\ 
Based on Commission filings, we also estimate that 170 transfer agents 
are smaller institutions that are likely to have no more than 10 
employees. We therefore estimate that 8,142 institutions, out of 17,267 
covered institutions, are smaller institutions that are likely to have 
no more than 10 employees.\152\ We believe that the institutions that 
have developed and adopted safeguarding policies and procedures are as 
likely to be smaller institutions with no more than 10 employees as the 
total population of covered institutions.\153\ Therefore, of 12,432 
covered institutions that we estimate have developed and adopted and 
are maintaining safeguarding policies and procedures, we estimate for 
purposes of this analysis that 5,862 institutions are smaller 
institutions,

[[Page 13710]]

while 6,570 institutions are larger institutions.\154\
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    \150\ See Investment Adviser Association, Evolution Revolution, 
A Profile of the Investment Adviser Profession (2006), available at 
http://www.nrs-inc.com/ICAA/EvRev06.pdf.
    \151\ As noted below, 915 broker-dealers and 238 investment 
companies, representing 27 fund complexes, are small entities.
    \152\ This estimate is based on the following calculation: 7,030 
+ 942 + 170 = 8,142 smaller institutions.
    \153\ 8,142 / 17,267 = 0.4715.
    \154\ 12,432 x 0.4715 = 5,861.88; 12,432 - 5,862 = 6,570.
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    Based on conversations with representatives of covered 
institutions, and information collected from limited inquiries of 
covered institutions, we estimate that smaller institutions are 
currently spending between $5,000 and $1,000,000 per year to comply 
with the safeguards and disposal rules.\155\ We also estimate that 
larger institutions are spending between $200,000 and $10,000,000 per 
year to comply with the safeguards and disposal rules. These estimates 
include costs for dedicated personnel, maintaining up-to-date policies 
and procedures, enforcing various safeguarding requirements (such as 
``clean desk'' requirements), hiring contractors to properly dispose of 
sensitive information, developing and enforcing access procedures, 
ongoing staff training, monitoring and reviewing compliance with 
safeguarding standards, and computer encryption. These estimates also 
include current spending to comply with state data security breach 
statutes.\156\
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    \155\ See supra note 111.
    \156\ These estimates also include transfer agents' current 
spending to comply with the FTC Safeguards Rule. As noted, the 
proposed amendments would apply to every broker or dealer other than 
a notice-registered broker or dealer, every investment company, and 
every investment adviser or transfer agent registered with the 
Commission. See proposed paragraph (a)(1) of Section 30.
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    We expect that most covered institutions have information security 
programs in place that would be consistent with the proposed 
amendments.\157\ We do not have a reliable basis for estimating the 
number of institutions that would incur additional costs or the extent 
to which those institutions would have to enhance their policies and 
procedures, including documentation of the information safeguard 
program and its elements. Accordingly, we have estimated the range of 
additional costs that individual firms could incur. We seek comment on 
the number of firms that have information safeguard programs that would 
satisfy the proposed amendments, the number of firms that would have to 
enhance their programs, the extent of those enhancements, and the costs 
of enhancement.
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    \157\ This belief is consistent with the analysis of the Office 
of the Comptroller of the Currency and Office of Thrift Supervision 
when they adopted the Banking Agencies Safeguard Guidelines in 2001. 
At that time they stated with respect to the institutions they 
regulated, that ``most if not all institutions already have 
information security programs in place that are consistent with the 
Banking Agencies' Security Guidelines. In such cases, little or no 
modification to an institution's program will be required.'' See 
Banking Agencies' Security Guidelines, supra note 23. The statement 
was made in the analysis of whether the Guidelines would constitute 
``a significant regulatory action'' for purposes of Executive Order 
12866, which includes an action that would have an annual effect on 
the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or 
State, local, or tribal governments or communities. The Board and 
the FDIC did not prepare an analysis under Executive Order 12866.
---------------------------------------------------------------------------

    If the proposed amendments were adopted, covered institutions could 
incur costs to supplement their current information security programs 
in some or all of the following ways. First, the institution would be 
required to review and, as appropriate, revise its current safeguarding 
policies and procedures, including their data security breach 
procedures and disposal rule procedures, to comply with the more 
specific requirements of the proposed amendments. Initially this would 
require the institutions to: (i) Designate an employee or employees as 
coordinator for the information security program; (ii) identify in 
writing reasonably foreseeable security risks that could result in the 
unauthorized access or compromise of personal information or personal 
information systems; (iii) review existing or design new safeguards to 
control these risks; (iv) train staff to implement the safeguards; and 
(v) test the effectiveness of the safeguards' key controls, including 
access controls, controls to detect, prevent and respond to incidents 
of unauthorized access to or use of personal information. Second, an 
institution also would be required to review its service providers' 
information safeguards and determine whether its service providers are 
capable of maintaining appropriate safeguards for personal information, 
document this finding, and enter into contracts with the service 
providers to implement and maintain appropriate safeguards.
    Third, an institution would be required to review existing 
safeguarding procedures relating to data security breach incidents. 
Initially, this could include: (i) Assessing current policies and 
procedures for responding to data breach incidents; and (ii) designing 
and implementing written policies and procedures to assess, control, 
and investigate incidents of unauthorized access or use of sensitive 
personal information, as well as policies and procedures to notify 
individuals and the Commission or a broker-dealer's designated 
examining authority, if necessary.
    Fourth, to comply with these amendments on an ongoing basis, 
institutions would be required to: (i) Regularly test or monitor, and 
maintain a written record of the effectiveness of their safeguards' key 
controls, systems and procedures (including an assessment of personal 
information system access controls, controls designed to detect, 
prevent and respond to data security breach incidents, and controls 
related to employee training or supervision); (ii) train staff to 
implement their information security program; (iii) continue and 
document their oversight of service providers; and (iv) evaluate and 
adjust their information security programs in light of testing and 
monitoring, and changes in technology, business operations or 
arrangements, and other material circumstances.
    Finally, an institution would be required to begin to respond to 
any data security breach incidents as may occur on an ongoing basis. 
This would include implementing and following written procedures to: 
(i) Assess the nature and scope of the incident; (ii) take appropriate 
steps to contain and control it, and document those steps in writing; 
(iii) promptly conduct a reasonable investigation and make a written 
determination of the likelihood that sensitive personal information had 
been or would be misused; (iv) if misuse of information had occurred or 
were reasonably likely, notify affected individuals; and (v) if an 
individual identified with the information had suffered substantial 
harm or inconvenience, or any unauthorized person had intentionally 
obtained access to or used sensitive personal information, notify the 
Commission, or the appropriate designated examining authority as soon 
as possible on proposed Form SP-30.
    We expect these estimated costs would vary significantly depending 
on the size of the institution, the adequacy of its existing 
safeguarding policies and procedures, and the nature of the 
institution's operations. The ``reasonably designed'' standard for 
information security programs in the proposed rule amendments is 
consistent with the current safeguards and disposal rules. Thus, we 
believe it should be relatively straightforward for an institution that 
does not currently have policies and procedures that apply to specific 
elements of the proposed amendments to incorporate these elements into 
its current system of safeguarding policies and procedures. In 
addition, we estimate that little or no modification to an 
institution's safeguarding policies and procedures would be required in 
situations where a covered institution's affiliate developed

[[Page 13711]]

its existing safeguarding policies and procedures in compliance with 
the Banking Agencies' safeguarding guidance or the FTC's rules.
    In addition to an institution's size, the adequacy of its 
safeguards, and its operations, we expect that institutions' 
information security programs would vary considerably depending on the 
way in which each collects information, the number and types of 
entities to which each transfers information, and the ways in which 
each stores, transfers, and disposes of personal information. Based on 
conversations with representatives of covered institutions and 
information collected from limited inquiries of institutions, our staff 
estimates that the additional initial costs that an institution could 
incur to comply with the proposed amendments could range from 0 to 10 
percent of its current costs of maintaining an information security 
program. Our staff also estimates that the additional costs an 
institution could incur for ongoing compliance with the proposed 
amendments could range from 0 to 5 percent of its current costs.\158\ 
For purposes of the PRA, staff estimates that for a smaller 
institution, the initial costs could range from between $500 and 
$100,000, with an approximate cost of $18,560 per smaller 
institution.\159\ Staff also estimates that for a smaller institution, 
additional ongoing costs could range from between $250 and $50,000, 
with an approximate cost of $10,764 per smaller institution per 
year.\160\ With respect to a larger institution, again for purposes of 
the PRA, staff estimates that initial costs could range from between 
$20,000 and $1 million, with an approximate cost of $172,732 per larger 
institution.\161\ Staff further estimates that for a larger 
institution, additional ongoing costs could range from between $10,000 
and $500,000 per year, with an approximate cost of $51,084 per larger 
institution per year.\162\ We note that an institution that currently 
incurs the highest estimated costs for its information security program 
seems likely already to have a comprehensive information security 
program and therefore would be less likely to require program 
enhancements to comply with the rule. Accordingly, the high end of the 
range of estimated costs for institutions may be excessive.
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    \158\ While we estimate that additional initial and ongoing 
costs would vary significantly across wide ranges, we estimate that 
the average cost per institution would be concentrated in the lower 
end of those ranges because, as noted, we believe that most 
institutions have already developed and adopted safeguarding and 
disposal polices and procedures, and are maintaining these policies 
and procedures, in accordance (or substantially in accordance) with 
the proposed rule amendments.
    \159\ See supra note 112 and accompanying text.
    \160\ See supra note 116 and accompanying text.
    \161\ See supra note 114 and accompanying text.
    \162\ See supra note 119 and accompanying text.
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    We request comment on our estimated costs and our rationale 
underlying them, and any aspect of the estimates or other costs that we 
have not considered. We seek information about particular costs of 
compliance as well as information as to any overall percentage increase 
in costs that firms would likely incur as a result of the proposed 
amendments. We request comment accompanied with statistical or other 
quantitative information, and comment on the experiences of 
institutions in addressing the circumstances addressed above. 
Commenters should identify the metrics of any empirical data that 
support their cost estimates.

B. Costs and Benefits of Broadened Scope of Information and of Covered 
Institutions

    The proposed rule amendments would broaden the scope of information 
covered by the safeguards and disposal rules. From the perspective of 
ease of compliance, we anticipate that institutions would benefit from 
having a common set of rules that apply to both nonpublic personal 
information about customers and consumer report information. We also 
expect that investors would benefit from expanding the scope of 
information covered by the safeguards and disposal rules because both 
terms exclude some information that without protections could more 
easily be used to obtain unauthorized access to investors' personal 
financial information. Because we expect that this expansion of the 
scope of information covered by the safeguards and disposal rules would 
not require modification of institutions' current policies and 
procedures, or their systems and databases for implementing these 
policies and procedures, and because many firms currently protect 
nonpublic personal information about customers and consumer report 
information in the same way, we expect that the proposal would result 
in no significant, if any, additional costs to institutions.
    The amendments also would expand the scope of the safeguards rule 
to include registered transfer agents, limit the scope of the 
safeguards rule to exclude notice-registered broker-dealers, and extend 
the disposal rule to apply to natural persons. As noted above, bringing 
registered transfer agents within the scope of our safeguards rule 
should benefit investors because these institutions maintain sensitive 
personal information. We included registered transfer agents in our 
estimate of the costs of the proposed information security and security 
breach procedures above.\163\ Because transfer agents are currently 
subject to the FTC Safeguards Rule, which, if the proposed amendments 
were adopted, would be substantially similar to the Commission's 
safeguards and disposal rules, we do not anticipate that there would be 
any unique or unusual costs to transfer agents, beyond those discussed 
above. Similarly, we do not anticipate any costs or benefits resulting 
from the proposal to exclude notice-registered broker-dealers from 
Regulation S-P because they would be subject to the CFTC's 
substantially similar safeguards rules. This proposal would simply 
clarify that notice-registered broker-dealers need not comply with both 
Regulation S-P and the CFTC's rules.
---------------------------------------------------------------------------

    \163\ See supra section V.A.2.
---------------------------------------------------------------------------

    We expect that the proposal to include natural persons within the 
scope of the disposal rule would benefit investors by establishing a 
system designed to ensure that personal information is disposed of 
properly by employees, particularly those who may work in branches far 
from a covered institution's main office. We also believe that this 
proposal would benefit investors by requiring compliance by natural 
persons, associated with a covered institution, who are directly 
responsible for properly disposing of personal information consistent 
with the institution's policies. We do not expect that this proposal 
would result in costs to institutions beyond those that would be 
imposed by the more specific standards analyzed above in section V.A.2. 
Specifically, we believe that any changes that would be required to 
covered institutions' policies and procedures or training programs to 
make it clear that individuals (not just firms) would have 
responsibility for complying with the disposal rule are captured in our 
estimates above.
    We request comment on these estimates of benefits and costs and our 
rationale underlying them, and any aspect of the estimates or other 
benefits or costs that we have not considered. In particular, we 
request comment accompanied with statistical or other quantitative 
evidence, and comment on the experiences of institutions in addressing 
the circumstances addressed above. Commenters should identify the 
metrics and sources of any empirical data that support their cost 
estimates.

C. Costs and Benefits of Maintaining Written Records

    The proposed amendments would require covered institutions to 
maintain

[[Page 13712]]

and preserve, in an easily accessible place, written records of the 
safeguards and disposal policies and procedures. The amendments also 
would require that institutions document compliance with their policies 
and procedures, and that records would have to be maintained for a 
period consistent with current requirements for similar records. We 
expect that this proposal would benefit investors by enabling the 
Commission's examination staff to evaluate whether institutions are in 
compliance with the requirements of the proposed amendments to the 
safeguards and disposal rules. We anticipate that institutions are 
unlikely to incur significant costs in maintaining records or 
documenting compliance to meet the requirements of this proposal 
because we would expect to establish a date for compliance with these 
amendments that would permit institutions to document and maintain 
these records in the normal course of ordinary business. Thus, we do 
not expect that this proposal would result in costs to institutions 
beyond those that would be imposed by the more specific standards 
analyzed above in section V.A.2.
    We request comment on these estimates of benefits and costs and our 
rationale underlying them, and any aspect of the estimates or other 
benefits or costs that we have not considered. In particular, we 
request comment accompanied with statistical or other quantitative 
evidence, and comment on the experiences of institutions in addressing 
the circumstances addressed above. Commenters should identify the 
metrics and sources of any empirical data that support their cost 
estimates.

D. Costs and Benefits of Proposed New Exception

    Our proposed amendments would create a new exception from 
Regulation S-P's notice and opt out requirements for disclosures of 
limited information in connection with the departure of a 
representative of a broker-dealer or investment adviser. The proposal 
should enhance information security by providing a clear framework for 
transferring limited information from one firm to another in this 
context. At firms that choose to rely on it, the proposed exception 
also should reduce potential incentives some representatives may have 
to take information with them secretly when they leave. In addition, 
the amendment should promote investor choice regarding whether to 
follow a departing representative to another firm. Institutions that 
choose to rely on the proposed exception also should benefit from the 
greater legal certainty that it would provide. We expect that 
institutions would incur minimal costs in retaining a written record of 
the information that would be disclosed in connection with a 
representative's departure, and expect that for a number of firms such 
costs are incurred already in the ordinary course of business.\164\ 
Institutions need not provide these disclosures. Thus we anticipate 
that only those that expect the potential benefits from the disclosure 
would justify any associated costs would make the disclosures.
---------------------------------------------------------------------------

    \164\ See supra note 91 and accompanying text.
---------------------------------------------------------------------------

    We request comment on this cost estimate and our rationale 
underlying it, and any aspect of the estimates or other costs that we 
have not considered. In particular, we request comment accompanied with 
statistical or other quantitative evidence, and the experiences of 
institutions in addressing the circumstances addressed above. 
Commenters should identify the metrics and sources of any empirical 
data that support their cost estimates.

E. Request for Comment

    We request comment on all aspects of this cost-benefit analysis, 
including comment as to whether the estimates we have used in our 
analysis are reasonable. We welcome comment on any aspect of our 
analysis, the estimates we have made, and the assumptions we have 
described. In particular, we request comment as to any costs or 
benefits we may not have considered here that could result from the 
adoption of the proposed amendments. We also request comment on the 
numerical estimates we have made here, and request comment and specific 
costs and benefits from covered institutions that have experienced any 
of the situations analyzed above.

VI. Initial Regulatory Flexibility Analysis

    This Initial Regulatory Flexibility Analysis (``IRFA'') has been 
prepared in accordance with 5 U.S.C. 603. It relates to proposed 
amendments to Regulation S-P that seek to strengthen the protections 
for safeguarding and disposing of sensitive personal information and 
provide a limited exception to notice and opt out requirements intended 
to augment investors' ability to choose whether to follow personnel who 
move from one broker-dealer or registered investment adviser to 
another. The proposed amendments would: (i) Require covered 
institutions to adopt more specific standards under the safeguards 
rule, including standards that would apply to security breach 
incidents; (ii) broaden the scope of information and the types of 
institutions and persons covered by the rules; and (iii) require 
covered institutions to maintain written records of the policies and 
procedures and their ongoing compliance with those polices and 
procedures. The proposed amendments also would require covered 
institutions seeking to rely on the new exception related to departing 
representatives to maintain a record of the information disclosed under 
the exception to a representative's new firm.

A. Reasons for the Proposed Action

    We have become concerned with the significant increase in the 
number of information security breaches that have come to light in 
recent years and the potential created by such breaches for misuse of 
personal financial information, including identity theft. We are 
concerned that some firms do not regularly reevaluate and update their 
safeguarding programs to deal with increasingly sophisticated methods 
of attack. To help prevent and address security breaches at covered 
institutions, we propose to require more specific standards for 
safeguarding personal information, including standards for responding 
to data security breaches. In order to provide better protection 
against unauthorized disclosure of personal financial information, we 
believe that the scope of information covered by the current safeguards 
and disposal rules should be broader.
    We also propose a new exception to Regulation S-P's notice and opt 
out requirements to permit limited disclosures of investor information 
when a registered representative of a broker-dealer or a supervised 
person of an investment adviser moves from one brokerage or advisory 
firm to another. The proposed exception should provide legal certainty 
to firms that choose to rely on it and reduce incentives some 
representatives may have to take information with them secretly when 
they leave. We believe this amendment also would help to augment 
investors' ability to choose whether or not to follow a departing 
representative to another firm.

B. Objectives of the Proposed Action

    The overall objectives of the proposed amendments are to: (i) 
Strengthen the protections for safeguarding and disposing of sensitive 
personal information; and (ii) provide a limited exception to 
Regulation S-P's notice and opt out requirements that would preserve 
investors' ability to choose whether to follow personnel who move

[[Page 13713]]

from one broker-dealer or investment adviser to another. We believe 
that the proposed amendments would help to:
     Prevent and mitigate information security breach 
incidents;
     Ensure that sensitive financial information is not 
disposed of improperly;
     Ensure that firms regularly review and update their 
safeguarding policies and procedures;
     Ensure that the full range of appropriate information and 
all relevant types of institutions regulated by the Commission are 
covered by Regulation S-P's requirements; and
     Enhance information security at firms choosing to rely on 
a new exemption for disclosures of limited information when 
representatives move from one firm to another by providing a clear 
framework for such disclosures and promote investor choice regarding 
whether or not to follow a departing representative to another firm.

C. Legal Basis

    The amendments to Regulation S-P are proposed pursuant to the 
authority set forth in Sections 501, 504, 505, and 525 of the GLBA, 
Section 628(a)(1) of the FCRA, Sections 17, 17A, 23, and 36 of the 
Exchange Act, Sections 31(a) and 38 of the Investment Company Act, and 
Sections 204 and 211 of the Investment Advisers Act.\165\
---------------------------------------------------------------------------

    \165\ 15 U.S.C. 6801, 6804, 6805, and 6825; 15 U.S.C. 
1681w(a)(1); 15 U.S.C. 78q, 78q-1, 78w, and 78mm; 15 U.S.C. 80a-
30(a), 80a-37; and 15 U.S.C. 80b-4, 80b-11.
---------------------------------------------------------------------------

D. Small Entities Subject to the Proposed Rule Amendments

    The proposed amendments to Regulation S-P would affect brokers, 
dealers, registered investment advisers, investment companies, and 
registered transfer agents, including entities that are considered to 
be a small business or small organization (collectively, ``small 
entity'') for purposes of the Regulatory Flexibility Act. For purposes 
of the Regulatory Flexibility Act, under the Exchange Act a broker or 
dealer is a small entity if it: (i) Had total capital of less than 
$500,000 on the date in its prior fiscal year as of which its audited 
financial statements were prepared or, if not required to file audited 
financial statements, on the last business day of its prior fiscal 
year; and (ii) is not affiliated with any person that is not a small 
entity.\166\ A registered transfer agent is a small entity if it: (i) 
Received less than 500 items for transfer and less than 500 items for 
processing during the preceding six months; (ii) transferred items only 
of issuers that are small entities; (iii) maintained master shareholder 
files that in the aggregate contained less than 1,000 shareholder 
accounts or was the named transfer agent for less than 1,000 
shareholder accounts at all times during the preceding fiscal year; and 
(iv) is not affiliated with any person that is not a small entity.\167\ 
Under the Investment Company Act, investment companies are considered 
small entities if they, together with other funds in the same group of 
related funds, have net assets of $50 million or less as of the end of 
its most recent fiscal year.\168\ Under the Investment Advisers Act, a 
small entity is an investment adviser that: (i) Manages less than $25 
million in assets; (ii) has total assets of less than $5 million on the 
last day of its most recent fiscal year; and (iii) does not control, is 
not controlled by, and is not under common control with another 
investment adviser that manages $25 million or more in assets, or any 
person that has had total assets of $5 million or more on the last day 
of the most recent fiscal year.\169\
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    \166\ 17 CFR 240.0-10.
    \167\ Id.
    \168\ 17 CFR 270.0-10.
    \169\ 17 CFR 275.0-7.
---------------------------------------------------------------------------

    Based on Commission filings, we estimate that 894 broker-dealers, 
153 registered transfer agents, 203 investment companies, and 760 
registered investment advisers may be considered small entities.

E. Reporting, Recordkeeping, and Other Compliance Requirements

    The proposed amendments to Regulation S-P would require more 
specific compliance requirements and create new reporting requirements 
for institutions that experience a breach of information security. The 
proposed amendments also would introduce new mandatory recordkeeping 
requirements.
    Under the proposed amendments to Regulation S-P, covered 
institutions would have to develop, implement, and maintain a 
comprehensive ``information security program'' for protecting personal 
information and responding to unauthorized access to or use of personal 
information. We expect that some covered institutions, including 
covered institutions that are small entities, would be required to 
supplement their current costs by the costs involved in reviewing and, 
as appropriate, revising their current safeguarding policies and 
procedures, including their data security breach response procedures 
and disposal rule procedures, to comply with the more specific 
requirements of the proposed amendments. Initially this would require 
institutions to: (i) Designate an employee or employees as coordinator 
for their information security program; (ii) identify in writing 
reasonably foreseeable security risks that could result in the 
unauthorized or compromise of personal information or personal 
information systems; (iii) create a written record of their design and 
implementation of their safeguards to control identified risks; (iv) 
train staff to implement their information security program; and (v) 
oversee service providers and document that oversight in writing.
    Institutions also would have to review existing safeguarding 
procedures relating to data security breach incidents. This would 
include: (i) Assessing current policies and procedures for responding 
to data breach incidents; and (ii) designing and implementing written 
policies and procedures to assess, control, and investigate incidents 
of unauthorized access or use of sensitive personal information, as 
well as policies and procedures for, under certain conditions, 
notifying individuals and the Commission or, in the case of a broker-
dealer, the appropriate designated examining authority.
    To comply with these amendments on an ongoing basis, institutions 
would have to implement procedures to: (i) Regularly test or monitor, 
and maintain a written record of the effectiveness of their safeguards' 
key controls, systems and procedures (including access controls, 
controls related to data security breach incidents, and controls 
related to employee training and supervision); (ii) augment staff 
training as necessary; (iii) provide continued oversight of service 
providers; and (iv) regularly evaluate and adjust their information 
security program in light of their regular testing and monitoring, 
changes in technology, their business operations or arrangements, and 
other material circumstances.
    Institutions also would have to respond appropriately to incidents 
of data security breach as may occur on an ongoing basis. This would 
include following their written procedures to: (i) Assess the nature 
and scope of the incident; (ii) take appropriate steps to contain and 
control the incident; (iii) promptly conduct a reasonable investigation 
and make a written determination of the likelihood that sensitive 
personal information has been or will be misused; (iv) if misuse of 
information has occurred or is reasonably likely, notify affected 
individuals as soon as possible; and (v) if an individual identified 
with the information has suffered substantial

[[Page 13714]]

harm or inconvenience, or any unauthorized person has intentionally 
obtained access to or used sensitive personal information, notify the 
Commission or an appropriate designated examining authority as soon as 
possible on proposed Form SP-30.
    Overall, we expect there would be incremental costs associated with 
the proposed amendments to Regulation S-P. Some proportion of large or 
small institutions would be likely to experience some increase in costs 
to comply with the proposed amendments if they are adopted.
    More specifically, we estimate that with respect to the more 
specific safeguarding elements, covered institutions would incur one-
time costs that could include the costs of assessment and revision of 
safeguarding standards, staff training, and reviewing and entering into 
contracts with service providers.\170\ We also estimate that the 
ongoing, long-term costs associated with the proposed amendments could 
include costs of regularly testing or monitoring the safeguards, 
augmenting staff training, providing continued oversight of service 
providers, evaluating and adjusting safeguards, and responding 
appropriately to incidents of data security breach.\171\
---------------------------------------------------------------------------

    \170\ See supra section IV.A.3.
    \171\ Id.
---------------------------------------------------------------------------

    We encourage written comments regarding this analysis. We solicit 
comments as to whether the proposed amendments could have an effect 
that we have not considered. We also request that commenters describe 
the nature of any impact on small entities and provide empirical data 
to support the extent of the impact.

F. Duplicative, Overlapping, or Conflicting Federal Rules

    As discussed above, the proposed amendments would impose 
requirements that covered institutions maintain and document a written 
information security program. The proposed amendments also would 
require reporting to individuals and appropriate regulators after 
certain serious data breach incidents. Covered institutions are subject 
to requirements elsewhere under the federal securities laws and rules 
of the self-regulatory organizations that require them to adopt written 
policies and procedures that may relate to some similar issues.\172\ 
The proposed amendments to Regulation S-P, however, would not require 
covered institutions to maintain duplicate copies of records covered by 
the rule, and an institution's information security program would not 
have to be maintained in a single location. Moreover, although the 
proposed amendments would require covered institutions to keep certain 
records that may be required under existing recordkeeping rules, the 
purposes of the requirements are different, and institutions need not 
maintain duplicates of the records themselves.\173\ We believe, 
therefore, that any duplication of regulatory requirements would be 
limited and would not impose significant additional costs on covered 
institutions including small entities. We believe there are no other 
federal rules that duplicate, overlap, or conflict with the proposed 
reporting requirements.
---------------------------------------------------------------------------

    \172\ See, e.g., 15 U.S.C. 80b-4a (requiring each adviser 
registered with the Commission to have written policies and 
procedures reasonably designed to prevent misuse of material non-
public information by the adviser or persons associated with the 
adviser); and NASD Rule 3010 (requiring each broker-dealer to 
establish and maintain written procedures to supervise the types of 
business it is engaged in and to supervise the activities of 
registered representatives and associated persons, which could 
include registered investment advisers).
    \173\ See, e.g., 17 CFR 240.17a-3 (requiring broker-dealers to 
make and keep, among other things, blotters or other records of 
original entry, securities position records, and order tickets) and 
17 CFR 270.31a-1(b)(11) (requiring investment companies to maintain, 
among other things, minute books of directors' meetings and ``files 
of all advisory material received from the investment adviser'').
---------------------------------------------------------------------------

G. Significant Alternatives

    The Regulatory Flexibility Act directs us to consider significant 
alternatives that would accomplish the stated objectives, while 
minimizing any significant adverse impact on small entities. In 
connection with the proposed amendments, we considered the following 
alternatives:
    (i) Establishing different compliance or reporting standards that 
take into account the resources available to small entities;
    (ii) The clarification, consolidation, or simplification of the 
reporting and compliance requirements under the rule for small 
entities;
    (iii) Use of performance rather than design standards; and
    (iv) Exempting small entities from coverage of the rule, or any 
part of the rule.
    With regard to the first alternative, we have proposed amendments 
to Regulation S-P that would continue to permit institutions 
substantial flexibility to design safeguarding policies and procedures 
appropriate for their size and complexity, the nature and scope of 
their activities, and the sensitivity of the personal information at 
issue. We nevertheless believe it necessary to provide a more specific 
framework of elements that every institution should consider and 
address, regardless of its size. The proposed amendments to Regulation 
S-P arise from our concern with the increasing number of information 
security breaches that have come to light in recent years, particularly 
those involving institutions regulated by the Commission. Establishing 
different compliance or reporting requirements for small entities could 
lead to less favorable protections for these entities' customers and 
compromise the effectiveness of the proposed amendments.
    With regard to the second alternative, we believe that the proposed 
amendments should, by their operation, simplify reporting and 
compliance requirements for small entities. Small covered institutions 
are likely to maintain personal information on fewer individuals than 
large covered institutions, and they are likely to have relatively 
simple personal information systems. Under proposed paragraph (a)(1) of 
Section 30, the information security programs that would be required by 
the proposed amendments would have to be appropriate to a covered 
institution's size and complexity, and the nature and scope of its 
activities. Accordingly, we believe that the requirements of the 
proposed amendment already would be simplified for small entities. We 
also believe that the requirements of the proposed amendments could not 
be further simplified, or clarified or consolidated, without 
compromising the investor protection objectives the proposed amendments 
are designed to achieve.
    With regard to the third alternative, the proposed amendments are 
for the most part performance based. Rather than specifying the types 
of policies and procedures or the technologies that an institution 
would be required to use to safeguard personal information, the 
proposed amendments would require the institution to assess the types 
of risks that it is likely to face and to address those in the manner 
the institution believes most appropriate. With respect to the specific 
requirements regarding notifications in the event of a data security 
breach, we have proposed that institutions provide only the information 
that seems most relevant for the Commission, a self-regulatory 
organization, or a consumer to know in order to adequately assess the 
potential damage that could result from the breach and to develop an 
appropriate response.
    Finally, with regard to alternative four, we believe that an 
exemption for small entities would not be appropriate.

[[Page 13715]]

Small entities are as vulnerable as large ones to the types of data 
security breach incidents we are trying to address. We believe that the 
specific elements we have proposed must be considered and incorporated 
into the policies and procedures of all covered institutions, 
regardless of their size, to mitigate the potential for fraud or other 
substantial harm or inconvenience to investors. Exempting small 
entities from coverage of the proposed amendments or any part of the 
proposed amendments could compromise the effectiveness of the proposed 
amendments and harm investors by lowering standards for safeguarding 
investor information maintained by small covered institutions. 
Excluding small entities from requirements that would be applicable to 
larger covered institutions also could create competitive disparities 
between large and small entities, for example by undermining investor 
confidence in the security of information maintained by small covered 
institutions.
    We request comment on whether it is feasible or necessary for small 
entities to have special requirements or timetables for, or exemptions 
from, compliance with the proposed amendments. In particular, could any 
of the proposed amendments be altered in order to ease the regulatory 
burden on small entities, without sacrificing the effectiveness of the 
proposed amendments?

H. Request for Comments

    We encourage the submission of comments with respect to any aspect 
of this IRFA. In particular, we request comments regarding: (i) The 
number of small entities that may be affected by the proposed 
amendments; (ii) the existence or nature of the potential impact of the 
proposed amendments on small entities discussed in the analysis; and 
(iii) how to quantify the impact of the proposed amendments. Commenters 
are asked to describe the nature of any impact and provide empirical 
data supporting the extent of the impact. Such comments will be 
considered in the preparation of the Final Regulatory Flexibility 
Analysis, if the proposed amendments are adopted, and will be placed in 
the same public file as comments on the proposed amendments. Comments 
should be submitted to the Commission at the addresses previously 
indicated.

VII. Consideration of Burden on Competition and Promotion of 
Efficiency, Competition and Capital Formation

    Exchange Act Section 23(a)(2) requires us, when adopting rules 
under the Exchange Act, to consider the impact any new rule would have 
on competition.\174\ In addition, Section 23(a)(2) prohibits us from 
adopting any rule that would impose a burden on competition not 
necessary or appropriate in furtherance of the purposes of Title I of 
the Exchange Act. The proposed amendments to Regulation S-P would: (i) 
Require more specific standards under the safeguards rule, including 
standards that would apply to data security breach incidents; (ii) 
broaden the scope of information and the types of institutions and 
persons covered by the safeguards and disposal rules; and (iii) require 
covered institutions to maintain written records of their policies and 
procedures and their compliance with those policies and procedures. The 
proposed amendments also would create a new exception from Regulation 
S-P's notice and opt-out requirements for firms to transfer limited 
investor information regarding clients of departing representatives to 
those representatives' new firms.
---------------------------------------------------------------------------

    \174\ 15 U.S.C. 78w(a)(2).
---------------------------------------------------------------------------

    Other financial institutions are currently subject to substantially 
similar safeguarding and data breach response requirements under rules 
adopted by the Banking Agencies and the FTC. Under the proposed 
amendments, all financial institutions would have to bear similar costs 
in implementing substantially similar rules thus enhancing competition. 
We expect that the proposed amendment to create the new exception for 
firms to transfer limited investor information regarding clients of 
departing representatives to those representatives' new firms would not 
limit and might promote competition in the securities industry by 
providing legal certainty for firms that choose to rely on it and by 
facilitating the transition for customers who choose to follow a 
departing representative to a new firm.
    In addition, Exchange Act Section 3(f), Investment Company Act 
Section 2(c), and Investment Advisers Act Section 202(c) require us, 
when engaging in rulemaking where we are required to consider or 
determine whether an action is necessary or appropriate in the public 
interest, to consider, in addition to the protection of investors, 
whether the action will promote efficiency, competition, and capital 
formation.\175\ Our analysis on competition is discussed above. As 
discussed above, the proposed amendments could result in additional 
costs for covered institutions, which could affect the efficiency of 
these institutions. On the other hand, the amendments could promote 
investor confidence and bring new investors to these institutions. In 
the long term, the proposed amendments also could help reduce covered 
institutions' costs by mitigating the frequency and consequences of 
information security breaches. We do not believe the proposed 
amendments would have a significant effect on capital formation, 
although if the proposals lead to better information security practices 
at covered institutions, potential investors could feel more 
comfortable investing money in the capital markets. As a result, we 
expect that the potential additional expense of compliance with these 
proposed rule amendments would have little, if any, adverse effect on 
efficiency, competition, and capital formation.
---------------------------------------------------------------------------

    \175\ 15 U.S.C. 78c(f); 15 U.S.C. 80a-2(c); and 15 U.S.C. 80b-
2(c).
---------------------------------------------------------------------------

    We request comment as to whether our estimates of the burdens the 
proposed amendments would have on covered institutions are reasonable. 
We welcome comment on any aspect of this analysis, and specifically 
request comment on any effect the proposed amendments might have on the 
promotion of efficiency, competition, and capital formation that we 
have not considered. Would the proposed amendments or their resulting 
costs affect the efficiency, competition, and capital formation of 
covered institutions and their businesses? Commenters are requested to 
provide empirical data and other factual support for their views to the 
extent possible.

VIII. Small Business Regulatory Enforcement Fairness Act

    For purposes of the Small Business Regulatory Enforcement Fairness 
Act of 1996, or ``SBREFA,'' \176\ we must advise OMB as to whether the 
proposed regulation constitutes a ``major'' rule. Under SBREFA, a rule 
is considered ``major'' if, upon adoption, it results or is likely to 
result in:
---------------------------------------------------------------------------

    \176\ Pub. L. No. 104-121, Title II, 110 Stat. 857 (1996) 
(codified in various sections of titles 5 and 15 of the United 
States Code, and as a note to 5 U.S.C. 601).
---------------------------------------------------------------------------

     An annual effect on the economy of $100 million or more 
(either in the form of an increase or a decrease);
     A major increase in costs or prices for consumers or 
individual industries; or
     Significant adverse effect on competition, investment or 
innovation.
    If a rule is ``major,'' its effectiveness will generally be delayed 
for 60 days pending Congressional review. We

[[Page 13716]]

request comment on the potential impact of the proposed regulation on 
the economy on an annual basis. Commenters are requested to provide 
empirical data and other factual support for their view to the extent 
possible.

IX. Statutory Authority

    The Commission is proposing to amend Regulation S-P pursuant to 
authority set forth in Sections 501, 504, 505 and 525 of the GLBA (15 
U.S.C. 6801, 6804, 6805 and 6825), Section 628(a)(1) of the FCRA (15 
U.S.C. 1681w(a)(1)), Sections 17, 17A, 23, and 36 of the Exchange Act 
(15 U.S.C. 78q, 78q-1, 78w, and 78mm), Sections 31(a) and 38 of the 
Investment Company Act (15 U.S.C. 80a-30(a) and 80a-37), and Sections 
204 and 211 of the Investment Advisers Act (15 U.S.C. 80b-4 and 80b-
11).

X. Text of Proposed Rules and Rule Amendments

List of Subjects in 17 CFR Part 248

    Brokers, Dealers, Investment advisers, Investment companies, 
Privacy, Reporting and recordkeeping requirements, Transfer agents.

    For the reasons set out in the preamble, the Commission proposes to 
amend 17 CFR part 248 as follows.
    1. Revise the heading of part 248 to read as follows:

PART 248--REGULATION S-P: PRIVACY OF CONSUMER FINANCIAL INFORMATION 
AND SAFEGUARDING PERSONAL INFORMATION

    2. Revise the authority citation for part 248 to read as follows:

    Authority: 15 U.S.C. 78q, 78q-1, 78w, 78mm, 80a-30(a), 80a-37, 
80b-4, 80b-11, 1681w(a)(1), 6801-6809, and 6825.

    3. Section 248.1(b) is amended by removing ``(b)'' from the 
reference to ``Sec.  248.30(b)'' in the first sentence of the 
paragraph.
    4. Section 248.2(b) is amended by removing ``(b)'' from the 
reference to ``Sec.  248.30(b)'' in the first sentence.
    5. Section 248.3(u) is amended by:
    a. Removing ``or'' at the end of paragraph (u)(1)(ii);
    b. Removing the period at the end of paragraph (u)(1)(iii) and in 
its place adding ``; or''; and
    d. Adding paragraph (u)(1)(iv) to read as follows:


Sec.  248.3  Definitions.

* * * * *
    (u) * * *
    (1) * * *
    (iv) Handled or maintained by you or on your behalf that is 
identified with any consumer, or with any employee, investor, or 
securityholder who is a natural person.
* * * * *
    6. Remove the heading of subpart A of part 248 and add in its place 
the following undesignated center heading: ``Privacy and Opt Out 
Notices''.
    7. Remove the heading of subpart B of part 248 and add in its place 
the following undesignated center heading: ``Limits on Disclosures''.
    8. Remove the heading of subpart C of part 248 and add in its place 
the following undesignated center heading: ``Exceptions''.
    9. Section 248.15 is amended by:
    a. Removing the word ``or'' at the end of paragraph (a)(6);
    b. Removing the period at the end of paragraph (a)(7)(iii) and in 
its place adding ``; or''; and
    c. Adding paragraph (a)(8).
    The addition reads as follows:


Sec.  248.15  Other exceptions to notice and opt out requirements.

    (a) * * *
    (8) To a broker, dealer, or investment adviser registered with the 
Commission in order to allow one of your representatives who leaves you 
to become the representative of another broker, dealer, or registered 
investment adviser to solicit customers to whom the representative 
personally provided a financial product or service on your behalf, 
provided:
    (i) The information is limited to a customer's name, a general 
description of the type of account and products held by the customer, 
and the customer's contact information, including the customer's 
address, telephone number, and email information;
    (ii) The information does not include any customer's account 
number, Social Security number, or securities positions; and
    (iii) You require your departing representative to provide to you, 
not later than the representative's separation from employment with 
you, a written record of the information that will be disclosed 
pursuant to this exception, and you maintain and preserve such records 
under Sec.  248.30(c).
    (iv) For purposes of this section, representative means:
    (A) A natural person associated with a broker or dealer registered 
with the Commission, who is registered or approved in compliance with 
Sec.  240.15b7-1 of this chapter; or
    (B) A supervised person of an investment adviser as defined in 
section 202(a)(25) of the Investment Advisers Act of 1940 (15 U.S.C. 
80b-2(a)(25)).
    10. Remove the heading of subpart D of part 248 and add in its 
place the following undesignated center heading: ``Relation to Other 
Laws; Effective Date''.
    11. Amend part 248 by adding the undesignated center heading, 
``Information Security Programs'' before Sec.  248.30, and revising 
Sec.  248.30 to read as follows:
INFORMATION SECURITY PROGRAMS


Sec.  248.30  Information security programs for personal information; 
records of compliance.

    (a) Information security programs.--(1) General requirements. Every 
broker or dealer other than a notice-registered broker or dealer, every 
investment company, and every investment adviser or transfer agent 
registered with the Commission, must develop, implement, and maintain a 
comprehensive information security program. Your program must include 
written policies and procedures that provide administrative, technical, 
and physical safeguards for protecting personal information, and for 
responding to unauthorized access to or use of personal information. 
Your program also must be appropriate to your size and complexity, the 
nature and scope of your activities, and the sensitivity of any 
personal information at issue.
    (2) Objectives. Your information security program must be 
reasonably designed to:
    (i) Ensure the security and confidentiality of personal 
information;
    (ii) Protect against any anticipated threats or hazards to the 
security or integrity of personal information; and
    (iii) Protect against unauthorized access to or use of personal 
information that could result in substantial harm or inconvenience to 
any consumer, employee, investor or securityholder who is a natural 
person.
    (3) Safeguards. In order to develop, implement, and maintain your 
information security program, you must:
    (i) Designate in writing an employee or employees to coordinate 
your information security program;
    (ii) Identify in writing reasonably foreseeable internal and 
external risks to the security, confidentiality, and integrity of 
personal information and personal information systems that could result 
in the unauthorized disclosure, misuse, alteration, destruction or 
other compromise of such information or systems;
    (iii) Design and implement safeguards to control the risks you 
identify, and maintain a written record of your design;
    (iv) Regularly test or otherwise monitor, and maintain a written 
record

[[Page 13717]]

of the effectiveness of the safeguards' key controls, systems, and 
procedures, including the effectiveness of:
    (A) Access controls on personal information systems;
    (B) Controls to detect, prevent and respond to incidents of 
unauthorized access to or use of personal information; and
    (C) Employee training and supervision relating to your information 
security program.
    (v) Train staff to implement your information security program;
    (vi) Oversee service providers, and document in writing that in 
your oversight you are:
    (A) Taking reasonable steps to select and retain service providers 
that are capable of maintaining appropriate safeguards for the personal 
information at issue; and
    (B) Requiring your service providers by contract to implement and 
maintain appropriate safeguards; and
    (vii) Evaluate and adjust your information security program 
accordingly in light of:
    (A) The results of the testing and monitoring required by paragraph 
(a)(3)(iv) of this section;
    (B) Relevant changes in technology;
    (C) Any material changes to your operations or business 
arrangements; and
    (D) Any other circumstances that you know or reasonably believe may 
have a material impact on your information security program.
    (4) Procedures for responding to unauthorized access or use. At a 
minimum, your information security program must include written 
procedures to:
    (i) Assess the nature and scope of any incident involving 
unauthorized access to or use of personal information, and maintain a 
written record of the personal information systems and types of 
personal information that may have been accessed or misused;
    (ii) Take appropriate steps to contain and control the incident to 
prevent further unauthorized access to or use of personal information 
and maintain a written record of the steps you take;
    (iii) After becoming aware of an incident of unauthorized access to 
sensitive personal information, promptly conduct a reasonable 
investigation, determine the likelihood that the information has been 
or will be misused, and maintain a written record of your 
determination;
    (iv) If you determine that misuse of the information has occurred 
or is reasonably possible, notify each individual with whom the 
information is identified as soon as possible in accordance with 
paragraph (a)(5) of this section and maintain a written record that you 
provided notification; provided however that if an appropriate law 
enforcement agency determines that notification will interfere with a 
criminal investigation and requests in writing that you delay 
notification, you may delay notification until it no longer interferes 
with the criminal investigation; and
    (v) If you are a broker or dealer other than a notice-registered 
broker or dealer, provide written notice on Form SP-30 to your 
designated examining authority (see 17 CFR 240.17d-1), and, if you are 
an investment company or an investment adviser or transfer agent 
registered with the Commission, provide written notice on Form SP-30 to 
the principal office of the Commission, as soon as possible after you 
become aware of any incident of unauthorized access to or use of 
personal information in which:
    (A) There is a significant risk that an individual identified with 
the information might suffer substantial harm or inconvenience; or
    (B) An unauthorized person has intentionally obtained access to or 
used sensitive personal information.
    (5) Notifying individuals of unauthorized access or use. If you 
determine that an unauthorized person has obtained access to or used 
sensitive personal information, and you determine that misuse of the 
information has occurred or is reasonably possible, you must notify 
each individual with whom the information is identified in a clear and 
conspicuous manner and by a means designed to ensure that the 
individual can reasonably be expected to receive it. The notice must:
    (i) Describe in general terms the incident and the type of 
sensitive personal information that was the subject of unauthorized 
access or use;
    (ii) Describe what you have done to protect the individual's 
information from further unauthorized access or use;
    (iii) Include a toll-free telephone number to call, or if you do 
not have any toll-free number, include a telephone number to call and 
the address and the name of a specific office to write for further 
information and assistance;
    (iv) If the individual has an account with you, recommend that the 
individual review account statements and immediately report any 
suspicious activity to you; and
    (v) Include information about the availability of online guidance 
from the FTC regarding steps an individual can take to protect against 
identity theft, a statement encouraging the individual to report any 
incidents of identity theft to the FTC, and the FTC's Web site address 
and toll-free telephone number that individuals may use to obtain the 
identity theft guidance and report suspected incidents of identity 
theft.
    (b) Disposal of personal information.--(1) Standard. Every broker 
or dealer other than a notice-registered broker or dealer, every 
investment company, every investment adviser or transfer agent 
registered with the Commission, and every natural person who is an 
associated person of a broker or dealer, a supervised person of an 
investment adviser registered with the Commission, or an associated 
person of a transfer agent registered with the Commission, that 
maintains or otherwise possesses personal information for a business 
purpose must properly dispose of the information by taking reasonable 
measures to protect against unauthorized access to or use of the 
information in connection with its disposal.
    (2) Written policies, procedures and records. Every broker or 
dealer, other than a notice-registered broker or dealer, every 
investment company, and every investment adviser and transfer agent 
registered with the Commission must:
    (i) Adopt written policies and procedures that address the proper 
disposal of personal information according to the requirements of 
paragraph (b)(1) of this section; and
    (ii) Document in writing its proper disposal of personal 
information in compliance with paragraph (b)(1) of this section.
    (3) Relation to other laws. Nothing in this paragraph (b) shall be 
construed:
    (i) To require any broker, dealer, investment company, investment 
adviser, transfer agent, associated person of a broker or dealer, 
supervised person of an investment adviser, or associated person of a 
transfer agent, to maintain or destroy any record pertaining to an 
individual that is not imposed under other law; or
    (ii) To alter or affect any requirement imposed under any other 
provision of law to maintain or destroy records.
    (c) Recordkeeping. (1) Every broker or dealer other than a notice-
registered broker or dealer, every investment company, and every 
investment adviser or transfer agent registered with the Commission, 
must make and maintain the records and written policies and procedures 
required under paragraphs (a) and (b)(2) of this section. Every broker 
or dealer other than a notice-registered broker or dealer, and every 
investment adviser registered with the Commission seeking to rely on 
the

[[Page 13718]]

exception in Sec.  248.15(a)(8) must make and maintain the records 
required by Sec.  248.15(a)(8)(iii).
    (2) Starting from when the record was made, or from when the 
written policy or procedure was last modified, the records and written 
policies and procedures required under paragraphs (a) and (b)(2) of 
this section, and the records made pursuant to Sec.  248.15(a)(8)(iii), 
must be preserved in accordance with:
    (i) 17 CFR 240.17a-4(b) by a broker or dealer other than a notice-
registered broker or dealer;
    (ii) 240.17Ad-7(b) by a transfer agent registered with the 
Commission;
    (iii) 270.31a-2(a)(4)-(6) by an investment company; and
    (iv) 275.204-2(e)(1) by an investment adviser registered with the 
Commission.
    (d) Definitions. As used in this Sec.  248.30, unless the context 
otherwise requires:
    (1) Associated person of a broker or dealer has the same meaning as 
in section 3(a)(18) of the Securities Exchange Act of 1934 (15 U.S.C. 
78c(a)(18)).
    (2) Associated person of a transfer agent has the same meaning as 
in section 3(a)(49) of the Securities Exchange Act of 1934 (15 U.S.C. 
78c(a)(49)).
    (3) Consumer report has the same meaning as in section 603(d) of 
the Fair Credit Reporting Act (15 U.S.C. 1681a(d)).
    (4) Consumer report information means any record about an 
individual, whether in paper, electronic or other form, that is a 
consumer report or is derived from a consumer report. Consumer report 
information also means a compilation of such records. Consumer report 
information does not include information that does not identify 
individuals, such as aggregate information or blind data.
    (5) Disposal means:
    (i) The discarding or abandonment of personal information; or
    (ii) The sale, donation, or transfer of any medium, including 
computer equipment, on which personal information is stored.
    (6) Information security program means the administrative, 
technical, or physical safeguards you use to access, collect, 
distribute, process, protect, store, use, transmit, dispose of, or 
otherwise handle personal information.
    (7) Notice-registered broker or dealer means a broker or dealer 
registered by notice with the Commission under section 15(b)(11) of the 
Securities Exchange Act of 1934 (15 U.S.C. 78o(b)(11)).
    (8) Personal information means any record containing consumer 
report information, or nonpublic personal information as defined in 
Sec.  248.3(t), that is identified with any consumer, or with any 
employee, investor, or securityholder who is a natural person, whether 
in paper, electronic, or other form, that is handled or maintained by 
you or on your behalf.
    (9) Personal information system means any method used to access, 
collect, store, use, transmit, protect, or dispose of personal 
information.
    (10) Sensitive personal information means personal information, or 
any combination of components of personal information, that would allow 
an unauthorized person to use, log into, or access an individual's 
account, or to establish a new account using the individual's 
identifying information, including the individual's:
    (i) Social Security number; or
    (ii) Name, telephone number, street address, e-mail address, or 
online user name, in combination with the individual's account number, 
credit or debit card number, driver's license number, credit card 
expiration date or security code, mother's maiden name, password, 
personal identification number, biometric record, or other 
authenticating information.
    (11) Service provider means any person or entity that receives, 
maintains, processes, or otherwise is permitted access to personal 
information through its provision of services directly to a broker, 
dealer, investment company, or investment adviser or transfer agent 
registered with the Commission.
    (12) (i) Substantial harm or inconvenience means personal injury, 
or more than trivial financial loss, expenditure of effort or loss of 
time, including theft, fraud, harassment, impersonation, intimidation, 
damaged reputation, impaired eligibility for credit, or the 
unauthorized use of information identified with an individual to obtain 
a financial product or service, or to access, log into, effect a 
transaction in, or otherwise use the individual's account.
    (ii) Substantial harm or inconvenience does not include 
unintentional access to personal information by an unauthorized person 
that results only in trivial financial loss, expenditure of effort or 
loss of time, such as if use of the information results only in your 
deciding to change the individual's account number or password.
    (13) Supervised person of an investment adviser has the same 
meaning as in section 202(a)(25) of the Investment Advisers Act of 1940 
(15 U.S.C. 80b-2(a)(25)).
    (14) Transfer agent has the same meaning as in section 3(a)(25) of 
the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(25)).
    12. Redesignate Appendix A to part 248 as Appendix B to part 248, 
and revise its heading to read as follows:
    Appendix B to part 248--Sample Clauses
    13. Add new Appendix A to part 248 to read as follows:

Appendix A to Part 248--Forms

    (1) Availability of Forms. Any person may obtain a copy of Form 
S-P or Form SP-30 prescribed for use in this part by written request 
to the Securities and Exchange Commission, 100 F Street, NE., 
Washington, DC 20549. Any person also may view the forms on the 
Commission Web site as follows:
    (a) Form S-P at: [Web site URL];
    (b) Form SP-30 at: [Web site URL].
    (2) Form S-P. Use of Form S-P by brokers, dealers, and 
investment companies, and by investment advisers registered with the 
Commission, constitutes compliance with the notice content 
requirements of Sec. Sec.  248.6 and 248.7.
    (3) Form SP-30. Form SP-30 must be used pursuant to Sec.  
248.30(a)(4)(v) as the notice of an incident of unauthorized access 
to or use of personal information to be filed with the appropriate 
designated examining authority by brokers or dealers other than 
notice-registered brokers or dealers, and to be filed with the 
Commission by investment companies, and by investment advisers and 
transfer agents registered with the Commission.
    14. Add Form SP-30 (referenced in paragraph (3) of Appendix A to 
part 248) to read as follows:

    Note: The text of Form SP-30 does not, and this amendment will 
not, appear in the Code of Federal Regulations.

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

FORM SP-30

SECURITY INCIDENT REPORTING FORM

(Pursuant to Sec.  248.30(a)(4)(v) of Regulation S-P (17 CFR 
248.30(a)(4)(v)))

    1. Provide identifying information (IARD/CRD number, CIK,* 
business name, principal business and mailing addresses, and 
telephone number).

    * CIK stands for ``Central Index Key,'' which is the unique 
number the Commission assigns to each entity that submits filings to 
it.
    2. Provide contact employee (name, title, address, and telephone 
number).
    3. Type of Institution:

----Broker-Dealer
----Investment Adviser
----Investment Adviser/Broker-Dealer (Dual Registrant)
----Investment Company
----Transfer Agent


[[Page 13719]]


    4. Describe the security incident (e.g., unauthorized use of 
your customers' online trading accounts, unauthorized use of your 
employee's password to access sensitive personal information 
maintained on one of your databases, or unauthorized access to your 
files on an investment company's shareholders):
    (a) Provide the date(s) of the incident;
    (b) List Registrant's offices, divisions or branches involved;
    (c) Describe personal information system(s) compromised;
    (d) Describe the incident and identify anyone you reasonably 
believe accessed or used personal information without authorization 
or compromised the personal information system(s).
    5. Provide information on third-party service provider(s) 
involved:
    (a) Identify any third-party service provider involved;
    (b) Describe the services provided;
    (c) If the service provider is an affiliate, describe the 
affiliation;
    (d) Describe the involvement of the service provider(s) in the 
incident.
    6. Describe steps taken or that you plan to take to assess the 
incident.
    7. Provide the number of individuals whose information appears 
to have been compromised:----------
    8. Describe steps you have taken or plan to take to prevent 
improper use of any personal information that was or may be 
compromised by the incident.
    9. Do you intend to notify affected individuals?
    (a) If yes, when?
    (b) If no, why not?
    10. Describe any steps you have taken or any plan to review your 
policies and procedures in light of this incident.
    11. Describe Customer account losses (to the extent known).
    (a) Number of Customer Accounts Accessed: ----------
    (b) Unauthorized Money Transfers
    (i) Initial Customer Losses from Actual or Attempted 
Unauthorized Transfers: $----------
    (ii) Mitigation of Customer Losses from Firm's Efforts
    (A) Surveillance/Investigative Intervention: $----------
    (B) Recoveries from Receiving Parties: $----------
    (C) Firm Compensation to Customers: $----------
    (iii) Net Customer Losses: $----------
    (c) Unauthorized Changes to Securities Portfolio (e.g., Pump and 
Dump Schemes)
    (i) Initial Customer Losses from Actual or Attempted 
Unauthorized Trading
    (A) Value of Accounts Before the Unauthorized Trading: $--------
--
    (B) Value of Accounts After the Unauthorized Trading: $--------
--
    (C) Initial Customer Losses/Gains: $----------
    (ii) Did the firm return the affected customer accounts to their 
positions before the unauthorized trading? Yes/No
    (iii) Net Customer Losses/Gains: $----------


     Dated: March 4, 2008.

    By the Commission.
Nancy M. Morris,
Secretary.

[FR Doc. E8-4612 Filed 3-12-08; 8:45 am]

BILLING CODE 8011-01-P
